From The Washingon Times:
EDITORIAL: Pushback on trial-lawyer tax breaks
Republican lawmakers blow the whistle on Treasury's fiat
By THE WASHINGTON TIMES - The Washington Times
7:02 p.m., Tuesday, July 27, 2010
Senate Judiciary Committee member Sen. Charles Grassley, R-Iowa, listens to FBI Director Robert Mueller testify on Capitol Hill in Washington, Wednesday, Sept. 16, 2009, during the committee's FBI oversight hearing. Grassley, also a member of the Senate Finance Committee, is one of the "Gang of Six" involved in the health care negotiations. (AP Photo/Susan Walsh)PrintEmailView 3Comment(s)Enlarge Text
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The trial-lawyer bosses who pull the strings of most congressional Democrats are continuing to press for a special tax break through a secret deal with the Treasury. This is despite the fact that they have never been able to persuade Congress itself to approve their shenanigans. Two Republican lawmakers are right on target in fighting back against this $1.6 billion tax boondoggle.
An anonymous spokesman for plaintiffs' lawyers made the case for what he called "the same, fair tax treatment that every other small business in the country currently enjoys" in The Hill newspaper on Monday. The notion is laughable.
"The Treasury is looking to clarify a provision in the tax code that prohibits trial lawyers from deducting expenses for contingency cases in the year they are incurred," according to The Hill. "Instead, these expenses can only be deducted after the case has concluded. The [lawyers] seek to make it so trial lawyers can deduct these expense in the year they are paid. ... Currently, expenses incurred by trial lawyers for contingency cases are considered to be loans that the client will eventually repay."
Victor Schwartz, author of a prominent textbook on tort law and a leading opponent of jackpot-justice lawsuits, has estimated for about 25 years without contradiction that plaintiffs' lawyers win at least some money by judgment or settlement from some 95 percent of their cases. In other words, these are loans for which repayment is quite likely. As the Heritage Foundation's Jack Park explains, "When a carmaker or dealer, [or] a furniture company ... makes a loan to the buyer by selling over time, those loans are part of a related business, not a deductible business expense. In fact, those loans generally do not become deductible unless and until there is a default. Why shouldn't the trial lawyers wait until there is a default to deduct their loans like everyone else?"
The difference is important because if the lawyers get the tax subsidy, the Treasury will be floating the lawyers' interest costs. Trial-lawyer-friendly congressmen, led by Sen. Arlen Specter, Pennsylvania Democrat, have tried but failed to persuade their colleagues to provide the subsidy. Since 1997, the IRS for good reason has refused to treat the loans as a deductible business expense. Suddenly, however, the Obama-controlled Treasury has acknowledged that it is considering an administrative ruling that provides the subsidy without actual legislation.
Enter Sen. Charles E. Grassley and Rep. Dave Camp, Republicans of Iowa and Michigan, respectively. On July 22, they wrote to Treasury Secretary Timothy F. Geithner demanding legal memoranda, drafts of the possible new regulations and copies of all communications with "outside parties" about the issue. They evince clear doubts about the Treasury's "authority" to change the rules without congressional action.
Questions and doubts about this special gift for trial lawyers are well-founded. Tax policy should be changed, if at all, by Congress, not by bureaucrats doing the bidding of the White House's political allies.
© Copyright 2010 The Washington Times, LLC. Click here for reprint permission.
Friday, July 30, 2010
Overcriminalized.com Legislative Update
from Overcriminalized.com:
Table of Contents
New:
•S. 3598: Secure Water Facilities Act
•S. 3599: Secure Chemical Facilities Act
•S. 3632:
•S. Amendment 4486:
•S. Amendment 4488:
•H.R. 5788: Mine Safety Accountability and Improved Protection Act
•H.R. 5810: Securing Aircraft Cockpits Against Lasers Act of 2010
Updates:
•H.R. 5663: Miner Safety and Health Act of 2010
•H.R. 5626: Blowout Prevention Act of 2010
•H.R. 5566: Prevention of Interstate Commerce in Animal Crush Videos Act of 2010
•H.R. 4173: The Wall Street Reform and Consumer Protection Act of 2009
•H.R. 725: Indian Arts and Crafts Amendments Act of 2009
--------------------------------------------------------------------------------
S. 3598: Secure Water Facilities Act
Sponsor: Lautenberg (D - NJ)
Official Title: A bill to amend the Safe Drinking Water Act and the Federal Water Pollution Control Act to authorize the administrator of the Environmental protection Agency to reduce or eliminate the risk of releases of hazardous chemicals from public water systems and wastewater treatment works, and for other purposes.
Status:
7/15/2010: Introduced in Senate
7/15/2010: Referred to Senate Environment and Public Works Committee
Commentary: This bill calls on the Administrator of the Environmental Protection Agency (EPA) to promulgate new regulations establishing risk-based performance standards for the security of public water systems that serve more than 3,300 people or otherwise present a security risk. The bill and regulations would also protect certain information from disclosure, including any vulnerability assessment of a water system, documents that relate to audits or inspections of covered systems, and documents relating to a security threat or breach. “Whoever discloses protected information in knowing violation of the regulations” will be subject to imprisonment for up to 1 year, a fine as authorized by Title 18, U.S. Code, or both. If the person who unlawfully discloses protected information is a federal officeholder or employee, that person will be subject to possible removal from federal office or employment.
S. 3599: Secure Chemical Facilities Act
Sponsor: Lautenberg (D - NJ)
Official Title: A bill to enhance the security of chemical facilities and for other purposes.
Status:
7/15/2010: Introduced in Senate
7/15/2010: Referred to Senate Homeland Security and Governmental Affairs Committee
Commentary: This bill would modify and make permanent the authority of the Department of Homeland Security to regulate security practices at chemical facilities. It would call for the risk-based designation and ranking of chemical facilities that possess substances of concern or meet other criteria established by the Secretary of DHS. The bill and regulations would also protect certain information from disclosure, including information related to the assessment of the vulnerability of a chemical facility, documents that relate to an audit or inspection of a covered chemical facility, and documents relating to a security threat or breach of security. “Any person” who discloses protected information “in knowing violation of the regulations” will be subject to imprisonment for up to 1 year, a fine as authorized by Title 18, U.S. Code, or both. If the person who unlawfully discloses protected information is a federal official or employee, that person will be subject to possible removal from federal office or employment.
S. 3632:
Sponsor: Gillibrand (D - NY)
Official Title: A bill to provide for enhanced penalties to combat Medicare and Medicaid Fraud, a Medicare data-mining system and a beneficiary verification pilot program, and for other purposes.
Status:
7/22/2010: Introduced in Senate
7/22/2010: Referred to Senate Finance Committee
Commentary: This bill, a nearly identical companion to H.R. 5044, includes provisions that would double the criminal penalties for specified knowing and willful wrongful acts in connection with federal health care programs and that would create a new offense for those who, knowingly, intentionally, and with the intent to defraud, “traffic” in Medicare or Medicaid beneficiary identification numbers or billing privileges. One subpart of 42 U.S.C. § 1320a-7b(a) prohibits the making of false statements or representations in connection with applications for benefits or payments under a federal health care program. The penalty for making such false statements or representations other than “in connection with the furnishing (by that person) of items or services for which payment is or may be made” will be doubled, with imprisonment for up to one year or a fine of $10,000 increasing to imprisonment for up to two years or a fine of $20,000. The penalty for (1) making false statements or representations by someone in connection with that person’s furnishing of items or services for which payment is or may be made; (2) receiving kickbacks, bribes, or rebates; (3) making false representations with respect to the condition or operation of institutions: or (4) engaging in illegal patient and admittance practices would be doubled as well, increasing from imprisonment for up to 5 years, a fine of $25,000 or both to imprisonment for up to 10 years, a fine of $50,000, or both. In addition, the bill would create a new offense for, knowingly, intentionally, and with the intent to defraud, selling or distributing two or more Medicare or Medicaid beneficiary identification numbers or billing privileges. The violation of this provision would be punishable by imprisonment for up to 3 years, a fine as authorized by Title 18, U.S. Code, or both.
S. Amendment 4486:
Sponsor: Pryor (D - AR)
Official Title:
Status:
7/19/2010: Introduced in Senate
Commentary: This Amendment is proposed for H.R. 5297, which would create the Small Business Lending Fund Program. It addresses the Earned Income Credit (EIC) that can be claimed by some individual taxpayers. It would amend 18 U.S.C. § 1028A(a), to address the problem of identity theft involving the EIC. Any person who “knowingly transfers, possesses, or uses, without lawful authority” someone else’s means of identification or a false identification document in connection with a willful attempt to evade or defeat taxes by claiming the EIC or submits a false or fraudulent statement in connection with a claim for EIC benefits would be subject to the penalties for identity theft set out in 18 U.S.C. § 1028(b), plus an additional term of imprisonment of up to 5 years.
S. Amendment 4488:
Sponsor: Boxer (D - CA)
Official Title:
Status:
7/20/2010: Introduced in Senate
Commentary: The Amendment is proposed for H.R. 5297, which would create the Small Business Lending Fund Program. A participating lender that “knowingly makes a false statement with respect to the income, assets, or other qualifications of a small business concern” in connection with a loan or loan application would be subject to imprisonment for up to 5 years, a fine of $500,000, or both.
H.R. 5788: Mine Safety Accountability and Improved Protection Act
Sponsor: Moore (R - WV)
Official Title: A bill to honor the nation’s fallen miners by requiring improved mine safety practices and compliance in order to prevent future mine accidents.
Status:
7/20/2010: Introduced in House
7/20/2010: Referred to House Education and Labor Committee
Commentary: This bill would increase the enforcement powers of the Secretary of Labor and establish a National Mine Safety Board and empower it to conduct independent investigations of mine accidents that involve 3 or more deaths. The bill would also increase the penalty for any willful violation of a mandatory health or safety standard or for any knowing failure to comply with orders issued by the Secretary. The penalty for a first conviction would increase to imprisonment for up to 5 years, a fine of $1,000,000, or both, from the current penalty of imprisonment for up to 1 year, a fine of $250,000, or both, as set out in 30 U.S.C. § 820(d). The penalty for subsequent violations would increase to imprisonment for up to 10 years, a fine of $2,000,000, or both, from the current penalty of imprisonment for up to 5 years, a fine of $500,000, or both. The bill would also make it unlawful to retaliate against anyone who has provided information “related to the existence of a health or safety violation or an unhealthful or unsafe condition, policy or practice” to enforcement officials. The penalty for that offense would be imprisonment for up to 10 years, a fine as authorized by Title 18, U.S. Code, or both. The bill would increase the penalty that may be imposed on any unauthorized advance notice of any health or safety inspection to imprisonment for up to 5 years, a fine as authorized by Title 18, U.S. Code, or both, from the current penalty of imprisonment for up to 6 months, a fine of $1,000, or both, as set forth in 30 U.S.C. § 820(e). Finally, where a business entity is responsible for the violation, any director, officer, or agent of that operator who “willfully authorized, ordered, or carried out such violation, failure, or refusal, or any policy or practice that contributed to the occurrence of a fatality” will be subject as an individual to the same civil and criminal penalties that can be imposed on the operator.
H.R. 5810: Securing Aircraft Cockpits Against Lasers Act of 2010
Sponsor: Lungren (R - CA)
Official Title: A bill to amend Title 18, United States Code, to provide penalties for aiming laser pointers at airplanes, and for other purposes.
Status:
7/21/2010: Introduced in House
7/21/2010: Referred to House Judiciary Committee
Commentary: The bill would make it unlawful for any person to “knowingly aim[] the beam of a laser pointer at an aircraft in the special aircraft jurisdiction of the United States, or at the flight path of such an aircraft.” The bill does not safeguard those who aim a laser at an aircraft or its flight path accidentally, inadvertently, or with benign intent. It would not prohibit the aiming of a laser beam at an aircraft by authorized individuals conducting research, development, operations, testing, or training, or anyone using the laser to send an emergency distress signal. The penalty for unlawfully aiming a laser at an aircraft would be imprisonment for up to 5 years, a fine as authorized by Title 18, U.S. Code, or both.
H.R. 5663: Miner Safety and Health Act of 2010
Sponsor: Miller (D - CA)
Official Title: A bill to improve compliance with mine and occupational safety and health laws, empower workers to raise safety concerns, prevent future mine and other workplace tragedies, establish rights of families of victims of workplace accidents, and for other purposes.
Status:
7/1/2010: Introduced in House
7/1/2010: Referred to House Education and Labor Committee
7/13/2010: Hearing Held by House Education and Labor Committee
7/21/2010: Mark up in the House Education and Labor Committee
7/21/2010: Ordered to be reported
Commentary: Section 820(d) of Title 30, U.S. Code, currently prohibits “willfully” violating a mandatory mining health or safety standard or “knowingly” violating or refusing to comply with certain orders issued by the Secretary of Labor. This bill would significantly lower the protectiveness of the mental state required to prove a violation of a mandatory health and safety standard from “willfully” to “knowingly.” Violators are currently subject to imprisonment for up to one year, a fine of up to $250,000, or both on the first conviction, and imprisonment for up to 5 years, a fine of $500,000, or both for subsequent violations. This bill would increase the penalty for first violations to imprisonment for up to 5 years, a fine of $1,000,000, or both, and the penalty for subsequent violations to imprisonment for up to 10 years, a fine of $2,000,000, or both. Under 30 U.S.C. § 820(c), a director, officer, or agent of a corporate violator who “knowingly authorized, ordered, or carried out” the conduct leading to the violation is subject to prosecution to the same extent as the corporation. This provision will not necessarily be interpreted by the courts to require the government to prove beyond a reasonable doubt that the director, officer, or agent had any actual knowledge that what he or she authorized, ordered, or carried out was unlawful.
H.R. 5626: Blowout Prevention Act of 2010
Sponsor: Waxman (D - CA)
Official Title: A bill to protect public health and safety and the environment by requiring the use of safe well control technologies and practices for the drilling of high-risk oil and gas wells in the United States, and for other purposes.
Status:
6/29/2010: Introduced in House
6/29/2010: Referred to House Energy and Commerce Committee
7/15/2010: Mark up in the House Energy and Commerce Committee
7/15/2010: Ordered to be reported House
Commentary: This bill would, beginning one year after its enactment, require applicants for permits to drill for a “high-risk well” to attest to the capacity of their blowout prevention and remediation ability and call for the promulgation of regulations specifying the minimum standards for blowout preventers, third-party certifications, and documentation. Any person who “knowingly and willfully” violates any provision of the act or any regulation that implements it, makes a false statement in a document that is filed or required to be filed, or falsifies or tampers with a required monitoring device will be subject to imprisonment for up to 10 years, a fine of up to $10 million, or both. Under the bill, an officer or agent of a corporation that is subject to prosecution who “knowingly and willfully, or with willful disregard” orders or carries out the prohibited activity is subject to prosecution to the same extent as the corporation. This provision will not necessarily be interpreted by the courts to require the officer or agent to have actual knowledge that what he or she authorized, ordered, or carried out was unlawful.
H.R. 5566: Prevention of Interstate Commerce in Animal Crush Videos Act of 2010
Sponsor: Gallegly (D - CA)
Official Title: A bill to amend Title 18, United States Code, to prohibit interstate commerce in animal crush videos, and for other purposes.
Status:
6/22/2010: Introduced in House
6/22/2010: Referred to House Judiciary Committee
6/23/2010: Mark up in the House Judiciary Committee
6/23/2010: Ordered to be reported
7/19/2010: Reported to House
7/21/2010: House passage of amended bill under suspension of rules.
Commentary: This bill replaces H.R. 5092 and is a response to the U. S. Supreme Court’s April 2010 decision in United States v. Stevens, in which the Court found that 18 U.S.C. § 48, which prohibits the commercial creation, sale, or possession of certain depictions of animal cruelty, violated the First Amendment because it was substantially overbroad. The Court noted, among other things, that the reach of § 48 was so broad that it would include depictions of hunting activities. Because the statute applied to depicted conduct that was illegal in any state where the depiction was created, sold, or possessed, the Court also observed that a “depiction of entirely lawful conduct runs afoul of the ban if that depiction finds its way into another State where the same conduct is illegal.” This bill would prohibit the knowing sale or distribution in interstate or foreign commerce of “animal crush videos” and create safe harbors for depictions of veterinary or animal husbandry practices and depictions of hunting, trapping, or fishing. It would apply to depictions of actual conduct that violate a criminal prohibition on cruelty to animals under Federal law “or the law of the State in which the depiction is created, sold, distributed, or offered for sale or distribution.”
H.R. 4173: The Wall Street Reform and Consumer Protection Act of 2009
Sponsor: Frank (D - MA)
Official Title: To provide for financial regulatory reform, to protect consumers and investors, to enhance Federal understanding of insurance issues, to regulate the over-the-counter derivatives markets, and for other purposes.
Status:
12/2/2009: Introduced
12/2/2009: Referred to House Financial Services Committee
12/2/2009: Referred to House Agriculture Committee
12/2/2009: Referred to House Energy and Commerce Committee
12/2/2009: Referred to House Judiciary Committee
12/2/2009: Referred to House Rules Committee
12/2/2009: Referred to House Budget Committee
12/2/2009: Referred to House Oversight and Government Reform Committee
12/2/2009: Referred to House Ways and Means Committee
12/11/2009: House Passage
1/20/2010: Received in Senate
1/20/2010: Referred to Senate Banking, Housing and Urban Affairs Committee
5/20/2010: Discharged Senate Banking, Housing and Urban Affairs Committee
5/24/2010: Senate Passage
6/30/2010: Conference report passed in the House
7/15/2010: Conference report passed in the Senate
7/21/2010: Signed by the President
Commentary: This wide-ranging financial markets regulatory bill would, among many other things, establish a Financial Services Oversight Council including the heads of the Department of the Treasury, Federal Reserve Board of Governors, Comptroller of the Currency, Office of Thrift Supervision, Securities and Exchange Commission (SEC), Commodities Futures Trading Commission (CFTC), Federal Deposit Insurance Corporation, Federal Housing Finance Agency, and National Credit Union Administration Board. The stated purposes for the Council include monitoring financial markets, advising Congress of financial regulatory developments, and coordinating financial regulatory actions among member agencies. The bill provides for the establishment of a regulatory regime that will cover transactions in derivatives and give oversight responsibility to the CFTC, requiring the registration of traders and trading activities. Section 13(a)(5) of Title 7, U.S. Code, governs the trading of commodity futures and other instruments regulated by the CFTC. It provides that “[a]ny person” who “willfully” violates “any other provision of this chapter, or any rule or regulation thereunder” will be subject to imprisonment for up to 10 years, a fine of $1 million, or both, plus the costs of prosecution. Section 13(a)(5) further provides, “[N]o person shall be subject to imprisonment under this paragraph for the violation of any rule or regulation if such person proves that he had no knowledge of such rule or regulation.” Where the transaction involves securities-based derivative instruments, responsibility for regulatory oversight is vested in the SEC. Section78ff of Title 15, U.S. Code, specifies the penalties for violating the securities laws. [Editor's Note: The National Association of Criminal Defense Lawyers' far more thorough description and analysis of the many criminal provisions in this wide-ranging bill is available at http://www.nacdl.org/public.nsf/whitecollar/HR4173].
H.R. 725: Indian Arts and Crafts Amendments Act of 2009
Sponsor: Pastor (D - AZ)
Official Title: A bill to protect Indian arts and crafts through the improvement of applicable criminal proceedings, and for other purposes.
Status:
1/27/2009: Introduced
1/27/2009: Referred to House Judiciary Committee
1/27/2009: Referred to House Natural Resources Committee
12/2/2009: Hearing Held by House Natural Resources Committee
12/16/2009: Mark up in the House Natural Resources Committee
12/16/2009: Ordered to be reported House Natural Resources Committee
1/15/2010: Discharged House Judiciary Committee
1/15/2010: Placed on House calendar
1/19/2010: House passage of amended bill under suspension of rules.
1/20/2010: Received in Senate
3/26/2010: Placed on Senate calendar
6/23/2010: Senate Passage
7/26/2010: House Passage
Commentary: As introduced, this bill was titled the Indian Arts and Crafts Amendments Act of 2009. It was identical to H.R. 7024 and S. 1255 in the 110th Congress and S. 151 in the current Congress and reduced penalties for some violations of the prohibition on misrepresenting goods for sale as having been produced by Native Americans. As passed by the Senate, the bill would not only reduce penalties set out in 18 U.S.C. § 1159 for some violations of the prohibition on misrepresenting goods for sale as having been produced by Native Americans, it would also change the sentencing powers of Native American tribal courts. With respect to misrepresentation, under current law, "knowing" violations are punishable by criminal fines of up to $250,000 and imprisonment of up to five years for a first offense, and by criminal fines of up to $1,000,000 and imprisonment of up to 15 years for subsequent offenses. This legislation would change the penalty structure in two ways. First offenses concerning goods worth less than $1,000 would be punishable by fines of up to $25,000 and imprisonment of up to a year, and fines for subsequent offenses would be calculated under Title 18 rather according to the fines defined under this new penalty scheme. With respect to the sentencing powers of Native American tribal courts, current law does not permit a tribal court to impose a term of imprisonment greater than 1 year, a fine of $5,000, or both. Under the bill as passed by the Senate, a tribal court would be able to sentence a defendant who has previously been convicted of the same or a comparable offense by any jurisdiction in the United States, or a defendant who is being prosecuted for an offense comparable to an offense that would be punishable by imprisonment for more than 1 year if prosecuted by the United States or any of the States to imprisonment for up to three years, a fine of $15,000, or both. Even when multiple charges are involved, the tribal courts would be unable to impose imprisonment longer than 9 years. Significantly, nothing in the bill as passed by the Senate would give a Native American tribe criminal jurisdiction over a non-Native American. Since 1990, tribes have been empowered to exercise criminal jurisdiction over any Native Americans, including those who are not members of the tribe.
"Overcriminalization" includes applying criminal sanctions to conduct that traditionally has not been considered inherently wrongful, federalizing crime that properly belongs under state jurisdiction, and attaching criminal penalties without criminal intent. Reasonable people may disagree whether any specific bill included in the Legislative Update Alert is an abuse of criminal law or is in fact justified. Nevertheless, the Legislative Update Alert includes all bills our researchers have identified that add or enhance federal criminal penalties. Please visit us at Overcriminalized.com
Table of Contents
New:
•S. 3598: Secure Water Facilities Act
•S. 3599: Secure Chemical Facilities Act
•S. 3632:
•S. Amendment 4486:
•S. Amendment 4488:
•H.R. 5788: Mine Safety Accountability and Improved Protection Act
•H.R. 5810: Securing Aircraft Cockpits Against Lasers Act of 2010
Updates:
•H.R. 5663: Miner Safety and Health Act of 2010
•H.R. 5626: Blowout Prevention Act of 2010
•H.R. 5566: Prevention of Interstate Commerce in Animal Crush Videos Act of 2010
•H.R. 4173: The Wall Street Reform and Consumer Protection Act of 2009
•H.R. 725: Indian Arts and Crafts Amendments Act of 2009
--------------------------------------------------------------------------------
S. 3598: Secure Water Facilities Act
Sponsor: Lautenberg (D - NJ)
Official Title: A bill to amend the Safe Drinking Water Act and the Federal Water Pollution Control Act to authorize the administrator of the Environmental protection Agency to reduce or eliminate the risk of releases of hazardous chemicals from public water systems and wastewater treatment works, and for other purposes.
Status:
7/15/2010: Introduced in Senate
7/15/2010: Referred to Senate Environment and Public Works Committee
Commentary: This bill calls on the Administrator of the Environmental Protection Agency (EPA) to promulgate new regulations establishing risk-based performance standards for the security of public water systems that serve more than 3,300 people or otherwise present a security risk. The bill and regulations would also protect certain information from disclosure, including any vulnerability assessment of a water system, documents that relate to audits or inspections of covered systems, and documents relating to a security threat or breach. “Whoever discloses protected information in knowing violation of the regulations” will be subject to imprisonment for up to 1 year, a fine as authorized by Title 18, U.S. Code, or both. If the person who unlawfully discloses protected information is a federal officeholder or employee, that person will be subject to possible removal from federal office or employment.
S. 3599: Secure Chemical Facilities Act
Sponsor: Lautenberg (D - NJ)
Official Title: A bill to enhance the security of chemical facilities and for other purposes.
Status:
7/15/2010: Introduced in Senate
7/15/2010: Referred to Senate Homeland Security and Governmental Affairs Committee
Commentary: This bill would modify and make permanent the authority of the Department of Homeland Security to regulate security practices at chemical facilities. It would call for the risk-based designation and ranking of chemical facilities that possess substances of concern or meet other criteria established by the Secretary of DHS. The bill and regulations would also protect certain information from disclosure, including information related to the assessment of the vulnerability of a chemical facility, documents that relate to an audit or inspection of a covered chemical facility, and documents relating to a security threat or breach of security. “Any person” who discloses protected information “in knowing violation of the regulations” will be subject to imprisonment for up to 1 year, a fine as authorized by Title 18, U.S. Code, or both. If the person who unlawfully discloses protected information is a federal official or employee, that person will be subject to possible removal from federal office or employment.
S. 3632:
Sponsor: Gillibrand (D - NY)
Official Title: A bill to provide for enhanced penalties to combat Medicare and Medicaid Fraud, a Medicare data-mining system and a beneficiary verification pilot program, and for other purposes.
Status:
7/22/2010: Introduced in Senate
7/22/2010: Referred to Senate Finance Committee
Commentary: This bill, a nearly identical companion to H.R. 5044, includes provisions that would double the criminal penalties for specified knowing and willful wrongful acts in connection with federal health care programs and that would create a new offense for those who, knowingly, intentionally, and with the intent to defraud, “traffic” in Medicare or Medicaid beneficiary identification numbers or billing privileges. One subpart of 42 U.S.C. § 1320a-7b(a) prohibits the making of false statements or representations in connection with applications for benefits or payments under a federal health care program. The penalty for making such false statements or representations other than “in connection with the furnishing (by that person) of items or services for which payment is or may be made” will be doubled, with imprisonment for up to one year or a fine of $10,000 increasing to imprisonment for up to two years or a fine of $20,000. The penalty for (1) making false statements or representations by someone in connection with that person’s furnishing of items or services for which payment is or may be made; (2) receiving kickbacks, bribes, or rebates; (3) making false representations with respect to the condition or operation of institutions: or (4) engaging in illegal patient and admittance practices would be doubled as well, increasing from imprisonment for up to 5 years, a fine of $25,000 or both to imprisonment for up to 10 years, a fine of $50,000, or both. In addition, the bill would create a new offense for, knowingly, intentionally, and with the intent to defraud, selling or distributing two or more Medicare or Medicaid beneficiary identification numbers or billing privileges. The violation of this provision would be punishable by imprisonment for up to 3 years, a fine as authorized by Title 18, U.S. Code, or both.
S. Amendment 4486:
Sponsor: Pryor (D - AR)
Official Title:
Status:
7/19/2010: Introduced in Senate
Commentary: This Amendment is proposed for H.R. 5297, which would create the Small Business Lending Fund Program. It addresses the Earned Income Credit (EIC) that can be claimed by some individual taxpayers. It would amend 18 U.S.C. § 1028A(a), to address the problem of identity theft involving the EIC. Any person who “knowingly transfers, possesses, or uses, without lawful authority” someone else’s means of identification or a false identification document in connection with a willful attempt to evade or defeat taxes by claiming the EIC or submits a false or fraudulent statement in connection with a claim for EIC benefits would be subject to the penalties for identity theft set out in 18 U.S.C. § 1028(b), plus an additional term of imprisonment of up to 5 years.
S. Amendment 4488:
Sponsor: Boxer (D - CA)
Official Title:
Status:
7/20/2010: Introduced in Senate
Commentary: The Amendment is proposed for H.R. 5297, which would create the Small Business Lending Fund Program. A participating lender that “knowingly makes a false statement with respect to the income, assets, or other qualifications of a small business concern” in connection with a loan or loan application would be subject to imprisonment for up to 5 years, a fine of $500,000, or both.
H.R. 5788: Mine Safety Accountability and Improved Protection Act
Sponsor: Moore (R - WV)
Official Title: A bill to honor the nation’s fallen miners by requiring improved mine safety practices and compliance in order to prevent future mine accidents.
Status:
7/20/2010: Introduced in House
7/20/2010: Referred to House Education and Labor Committee
Commentary: This bill would increase the enforcement powers of the Secretary of Labor and establish a National Mine Safety Board and empower it to conduct independent investigations of mine accidents that involve 3 or more deaths. The bill would also increase the penalty for any willful violation of a mandatory health or safety standard or for any knowing failure to comply with orders issued by the Secretary. The penalty for a first conviction would increase to imprisonment for up to 5 years, a fine of $1,000,000, or both, from the current penalty of imprisonment for up to 1 year, a fine of $250,000, or both, as set out in 30 U.S.C. § 820(d). The penalty for subsequent violations would increase to imprisonment for up to 10 years, a fine of $2,000,000, or both, from the current penalty of imprisonment for up to 5 years, a fine of $500,000, or both. The bill would also make it unlawful to retaliate against anyone who has provided information “related to the existence of a health or safety violation or an unhealthful or unsafe condition, policy or practice” to enforcement officials. The penalty for that offense would be imprisonment for up to 10 years, a fine as authorized by Title 18, U.S. Code, or both. The bill would increase the penalty that may be imposed on any unauthorized advance notice of any health or safety inspection to imprisonment for up to 5 years, a fine as authorized by Title 18, U.S. Code, or both, from the current penalty of imprisonment for up to 6 months, a fine of $1,000, or both, as set forth in 30 U.S.C. § 820(e). Finally, where a business entity is responsible for the violation, any director, officer, or agent of that operator who “willfully authorized, ordered, or carried out such violation, failure, or refusal, or any policy or practice that contributed to the occurrence of a fatality” will be subject as an individual to the same civil and criminal penalties that can be imposed on the operator.
H.R. 5810: Securing Aircraft Cockpits Against Lasers Act of 2010
Sponsor: Lungren (R - CA)
Official Title: A bill to amend Title 18, United States Code, to provide penalties for aiming laser pointers at airplanes, and for other purposes.
Status:
7/21/2010: Introduced in House
7/21/2010: Referred to House Judiciary Committee
Commentary: The bill would make it unlawful for any person to “knowingly aim[] the beam of a laser pointer at an aircraft in the special aircraft jurisdiction of the United States, or at the flight path of such an aircraft.” The bill does not safeguard those who aim a laser at an aircraft or its flight path accidentally, inadvertently, or with benign intent. It would not prohibit the aiming of a laser beam at an aircraft by authorized individuals conducting research, development, operations, testing, or training, or anyone using the laser to send an emergency distress signal. The penalty for unlawfully aiming a laser at an aircraft would be imprisonment for up to 5 years, a fine as authorized by Title 18, U.S. Code, or both.
H.R. 5663: Miner Safety and Health Act of 2010
Sponsor: Miller (D - CA)
Official Title: A bill to improve compliance with mine and occupational safety and health laws, empower workers to raise safety concerns, prevent future mine and other workplace tragedies, establish rights of families of victims of workplace accidents, and for other purposes.
Status:
7/1/2010: Introduced in House
7/1/2010: Referred to House Education and Labor Committee
7/13/2010: Hearing Held by House Education and Labor Committee
7/21/2010: Mark up in the House Education and Labor Committee
7/21/2010: Ordered to be reported
Commentary: Section 820(d) of Title 30, U.S. Code, currently prohibits “willfully” violating a mandatory mining health or safety standard or “knowingly” violating or refusing to comply with certain orders issued by the Secretary of Labor. This bill would significantly lower the protectiveness of the mental state required to prove a violation of a mandatory health and safety standard from “willfully” to “knowingly.” Violators are currently subject to imprisonment for up to one year, a fine of up to $250,000, or both on the first conviction, and imprisonment for up to 5 years, a fine of $500,000, or both for subsequent violations. This bill would increase the penalty for first violations to imprisonment for up to 5 years, a fine of $1,000,000, or both, and the penalty for subsequent violations to imprisonment for up to 10 years, a fine of $2,000,000, or both. Under 30 U.S.C. § 820(c), a director, officer, or agent of a corporate violator who “knowingly authorized, ordered, or carried out” the conduct leading to the violation is subject to prosecution to the same extent as the corporation. This provision will not necessarily be interpreted by the courts to require the government to prove beyond a reasonable doubt that the director, officer, or agent had any actual knowledge that what he or she authorized, ordered, or carried out was unlawful.
H.R. 5626: Blowout Prevention Act of 2010
Sponsor: Waxman (D - CA)
Official Title: A bill to protect public health and safety and the environment by requiring the use of safe well control technologies and practices for the drilling of high-risk oil and gas wells in the United States, and for other purposes.
Status:
6/29/2010: Introduced in House
6/29/2010: Referred to House Energy and Commerce Committee
7/15/2010: Mark up in the House Energy and Commerce Committee
7/15/2010: Ordered to be reported House
Commentary: This bill would, beginning one year after its enactment, require applicants for permits to drill for a “high-risk well” to attest to the capacity of their blowout prevention and remediation ability and call for the promulgation of regulations specifying the minimum standards for blowout preventers, third-party certifications, and documentation. Any person who “knowingly and willfully” violates any provision of the act or any regulation that implements it, makes a false statement in a document that is filed or required to be filed, or falsifies or tampers with a required monitoring device will be subject to imprisonment for up to 10 years, a fine of up to $10 million, or both. Under the bill, an officer or agent of a corporation that is subject to prosecution who “knowingly and willfully, or with willful disregard” orders or carries out the prohibited activity is subject to prosecution to the same extent as the corporation. This provision will not necessarily be interpreted by the courts to require the officer or agent to have actual knowledge that what he or she authorized, ordered, or carried out was unlawful.
H.R. 5566: Prevention of Interstate Commerce in Animal Crush Videos Act of 2010
Sponsor: Gallegly (D - CA)
Official Title: A bill to amend Title 18, United States Code, to prohibit interstate commerce in animal crush videos, and for other purposes.
Status:
6/22/2010: Introduced in House
6/22/2010: Referred to House Judiciary Committee
6/23/2010: Mark up in the House Judiciary Committee
6/23/2010: Ordered to be reported
7/19/2010: Reported to House
7/21/2010: House passage of amended bill under suspension of rules.
Commentary: This bill replaces H.R. 5092 and is a response to the U. S. Supreme Court’s April 2010 decision in United States v. Stevens, in which the Court found that 18 U.S.C. § 48, which prohibits the commercial creation, sale, or possession of certain depictions of animal cruelty, violated the First Amendment because it was substantially overbroad. The Court noted, among other things, that the reach of § 48 was so broad that it would include depictions of hunting activities. Because the statute applied to depicted conduct that was illegal in any state where the depiction was created, sold, or possessed, the Court also observed that a “depiction of entirely lawful conduct runs afoul of the ban if that depiction finds its way into another State where the same conduct is illegal.” This bill would prohibit the knowing sale or distribution in interstate or foreign commerce of “animal crush videos” and create safe harbors for depictions of veterinary or animal husbandry practices and depictions of hunting, trapping, or fishing. It would apply to depictions of actual conduct that violate a criminal prohibition on cruelty to animals under Federal law “or the law of the State in which the depiction is created, sold, distributed, or offered for sale or distribution.”
H.R. 4173: The Wall Street Reform and Consumer Protection Act of 2009
Sponsor: Frank (D - MA)
Official Title: To provide for financial regulatory reform, to protect consumers and investors, to enhance Federal understanding of insurance issues, to regulate the over-the-counter derivatives markets, and for other purposes.
Status:
12/2/2009: Introduced
12/2/2009: Referred to House Financial Services Committee
12/2/2009: Referred to House Agriculture Committee
12/2/2009: Referred to House Energy and Commerce Committee
12/2/2009: Referred to House Judiciary Committee
12/2/2009: Referred to House Rules Committee
12/2/2009: Referred to House Budget Committee
12/2/2009: Referred to House Oversight and Government Reform Committee
12/2/2009: Referred to House Ways and Means Committee
12/11/2009: House Passage
1/20/2010: Received in Senate
1/20/2010: Referred to Senate Banking, Housing and Urban Affairs Committee
5/20/2010: Discharged Senate Banking, Housing and Urban Affairs Committee
5/24/2010: Senate Passage
6/30/2010: Conference report passed in the House
7/15/2010: Conference report passed in the Senate
7/21/2010: Signed by the President
Commentary: This wide-ranging financial markets regulatory bill would, among many other things, establish a Financial Services Oversight Council including the heads of the Department of the Treasury, Federal Reserve Board of Governors, Comptroller of the Currency, Office of Thrift Supervision, Securities and Exchange Commission (SEC), Commodities Futures Trading Commission (CFTC), Federal Deposit Insurance Corporation, Federal Housing Finance Agency, and National Credit Union Administration Board. The stated purposes for the Council include monitoring financial markets, advising Congress of financial regulatory developments, and coordinating financial regulatory actions among member agencies. The bill provides for the establishment of a regulatory regime that will cover transactions in derivatives and give oversight responsibility to the CFTC, requiring the registration of traders and trading activities. Section 13(a)(5) of Title 7, U.S. Code, governs the trading of commodity futures and other instruments regulated by the CFTC. It provides that “[a]ny person” who “willfully” violates “any other provision of this chapter, or any rule or regulation thereunder” will be subject to imprisonment for up to 10 years, a fine of $1 million, or both, plus the costs of prosecution. Section 13(a)(5) further provides, “[N]o person shall be subject to imprisonment under this paragraph for the violation of any rule or regulation if such person proves that he had no knowledge of such rule or regulation.” Where the transaction involves securities-based derivative instruments, responsibility for regulatory oversight is vested in the SEC. Section78ff of Title 15, U.S. Code, specifies the penalties for violating the securities laws. [Editor's Note: The National Association of Criminal Defense Lawyers' far more thorough description and analysis of the many criminal provisions in this wide-ranging bill is available at http://www.nacdl.org/public.nsf/whitecollar/HR4173].
H.R. 725: Indian Arts and Crafts Amendments Act of 2009
Sponsor: Pastor (D - AZ)
Official Title: A bill to protect Indian arts and crafts through the improvement of applicable criminal proceedings, and for other purposes.
Status:
1/27/2009: Introduced
1/27/2009: Referred to House Judiciary Committee
1/27/2009: Referred to House Natural Resources Committee
12/2/2009: Hearing Held by House Natural Resources Committee
12/16/2009: Mark up in the House Natural Resources Committee
12/16/2009: Ordered to be reported House Natural Resources Committee
1/15/2010: Discharged House Judiciary Committee
1/15/2010: Placed on House calendar
1/19/2010: House passage of amended bill under suspension of rules.
1/20/2010: Received in Senate
3/26/2010: Placed on Senate calendar
6/23/2010: Senate Passage
7/26/2010: House Passage
Commentary: As introduced, this bill was titled the Indian Arts and Crafts Amendments Act of 2009. It was identical to H.R. 7024 and S. 1255 in the 110th Congress and S. 151 in the current Congress and reduced penalties for some violations of the prohibition on misrepresenting goods for sale as having been produced by Native Americans. As passed by the Senate, the bill would not only reduce penalties set out in 18 U.S.C. § 1159 for some violations of the prohibition on misrepresenting goods for sale as having been produced by Native Americans, it would also change the sentencing powers of Native American tribal courts. With respect to misrepresentation, under current law, "knowing" violations are punishable by criminal fines of up to $250,000 and imprisonment of up to five years for a first offense, and by criminal fines of up to $1,000,000 and imprisonment of up to 15 years for subsequent offenses. This legislation would change the penalty structure in two ways. First offenses concerning goods worth less than $1,000 would be punishable by fines of up to $25,000 and imprisonment of up to a year, and fines for subsequent offenses would be calculated under Title 18 rather according to the fines defined under this new penalty scheme. With respect to the sentencing powers of Native American tribal courts, current law does not permit a tribal court to impose a term of imprisonment greater than 1 year, a fine of $5,000, or both. Under the bill as passed by the Senate, a tribal court would be able to sentence a defendant who has previously been convicted of the same or a comparable offense by any jurisdiction in the United States, or a defendant who is being prosecuted for an offense comparable to an offense that would be punishable by imprisonment for more than 1 year if prosecuted by the United States or any of the States to imprisonment for up to three years, a fine of $15,000, or both. Even when multiple charges are involved, the tribal courts would be unable to impose imprisonment longer than 9 years. Significantly, nothing in the bill as passed by the Senate would give a Native American tribe criminal jurisdiction over a non-Native American. Since 1990, tribes have been empowered to exercise criminal jurisdiction over any Native Americans, including those who are not members of the tribe.
"Overcriminalization" includes applying criminal sanctions to conduct that traditionally has not been considered inherently wrongful, federalizing crime that properly belongs under state jurisdiction, and attaching criminal penalties without criminal intent. Reasonable people may disagree whether any specific bill included in the Legislative Update Alert is an abuse of criminal law or is in fact justified. Nevertheless, the Legislative Update Alert includes all bills our researchers have identified that add or enhance federal criminal penalties. Please visit us at Overcriminalized.com
Thursday, July 29, 2010
Thousands Of New Federal Bureaucrats To "Protect" Consumer Finances
Yeah. Tell that to the Madoff victims who were revictimized by the SEC, which couldn't even get Madoff with the detailed allegations provided to it by an accountant....
From The American Thinker:
July 29, 2010
Thousands of New Bureaucrats to 'Protect' Consumer Finances
Peter Wilson
The Boston Globe featured two op-eds on local favorite Elizabeth Warren, who has been nominated to head the newly created Consumer Financial Protection Agency. On what passes for debate on the left, Joshua Green made "The Case for Elizabeth Warren," while Warren's fellow Harvard Law Professor Charles Fried argued that "Obama should give Warren a recess appointment." Apparently none of the voices opposing the Warren nomination could be reached for comment.
None of this is surprising. I was however struck by a line in the Green article:
[I]t's misleading to imply, as a Washington Post account did, that Warren personally will "hire hundreds, maybe even thousands of people, create an administrative structure from scratch, and oversee what is likely to be a long and arduous process of writing regulations.'' Mostly, her staff will do that work.
The debate here is over whether Warren has sufficient managerial skills to hire thousands of new federal employees who will spend years writing new regulations. It seems to Green and the author of the WaPo article that yet another massive expansion of federal bureaucracy is unremarkable and expected of government. I meanwhile am gnashing my teeth and tearing my hair at the thought of President Obama's destructive assault on our financial well-being-in the name of "Financial Protection."
Posted at 05:35 PM
From The American Thinker:
July 29, 2010
Thousands of New Bureaucrats to 'Protect' Consumer Finances
Peter Wilson
The Boston Globe featured two op-eds on local favorite Elizabeth Warren, who has been nominated to head the newly created Consumer Financial Protection Agency. On what passes for debate on the left, Joshua Green made "The Case for Elizabeth Warren," while Warren's fellow Harvard Law Professor Charles Fried argued that "Obama should give Warren a recess appointment." Apparently none of the voices opposing the Warren nomination could be reached for comment.
None of this is surprising. I was however struck by a line in the Green article:
[I]t's misleading to imply, as a Washington Post account did, that Warren personally will "hire hundreds, maybe even thousands of people, create an administrative structure from scratch, and oversee what is likely to be a long and arduous process of writing regulations.'' Mostly, her staff will do that work.
The debate here is over whether Warren has sufficient managerial skills to hire thousands of new federal employees who will spend years writing new regulations. It seems to Green and the author of the WaPo article that yet another massive expansion of federal bureaucracy is unremarkable and expected of government. I meanwhile am gnashing my teeth and tearing my hair at the thought of President Obama's destructive assault on our financial well-being-in the name of "Financial Protection."
Posted at 05:35 PM
On Arizona And Immigration: Judge Ignores Rule Of Law
From The Heritage Foundation:
On Arizona and Immigration: Judge Ignores Rule of Law
Posted July 28th, 2010 at 5:12pm in Protect America, Rule of Law with 36 comments Print This Post
As everyone knows, Arizona, chafed by the Federal government’s inability to control the flow of illegal immigrants into the State, enacted Senate Bill 1070 (PDF) in an effort to do something about the resulting collateral damage to it and its citizens. Now, a federal judge appointed by President Clinton, Susan Bolton, has temporarily blocked enforcement of portions of S.B. 1070, reasoning that those portions interfere with the Federal government’s system of immigration laws.
Significantly, Judge Bolton rejected the demand by the Obama Justice Department that the entire law be struck down. In fact, the judge upheld twelve different provisions of the law, including a prohibition on Arizona officials limiting the enforcement of federal immigration laws and another that allows Arizona citizens to sue any state official that adopts a policy of restricting such enforcement. The judge also upheld parts of the law intended to stop human smuggling, such as a provision that makes it possible to impound vehicles used to transport or harbor unlawfully present aliens.
Unfortunately, however, Judge Bolton (using very fallacious reasoning) did preliminarily block provisions (1) calling for Arizona law enforcement officials to verify the immigration status of individuals who are arrested when an officer has a reasonable suspicion that they are an illegal alien; (2) making it a state crime to violate federal alien registration requirements; (3) creating a crime for an illegal alien to solicit, apply for, or perform work; and (4) authorizing an arrest when there is probable cause to believe that an individual is removable from the U.S.
Of course, to come to that conclusion, the judge had to torture the language of the Arizona statute, ignore federal law and precedent, and come to an illogical conclusion about the supposed burdens placed on the federal government by the Arizona law.
For example, Section 2(B) of S.B. 1070 states very clearly that:
For any lawful stop, detention or arrest made by [an Arizona] law enforcement official…in the enforcement of any other law or ordinance…where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States, a reasonable effort shall be made…to determine the immigration status of the person, except if the determination may hinder or obstruct an investigation. Any person who is arrested shall have the person’s immigration status determined before the person is released.
This paragraph could not be clearer – the immigration status of individuals who have been arrested for some other crime will only be checked if the officer has a “reasonable suspicion” that they are an illegal alien. Yet the federal judge reads the second sentence of this paragraph without reference to the first as supposedly requiring that the immigration status of all arrestees must be determined, despite Arizona’s claims to the contrary. In other words, she completely ignores the first sentence and then claims that checking the immigration status of all arrestees would be an impermissible burden on the federal government.
This reading of the Arizona statute is illogical and the judge’s refusal to defer to Arizona’s construction of its own law is legally improper and certainly unnecessary, except for an activist judge with an agenda. In 1997, the Supreme Court chastised the Ninth Circuit and an Arizona district court for their treatment of a limiting construction of a state law suggested by the Arizona Attorney General and the recommendation that the Arizona Supreme Court be asked for its opinion of the proper construction of state law. The Court unanimously said that the federal courts should ask, “Is this conflict really necessary? When anticipatory relief is sought in federal court against a state statute, respect for the States in our federal system calls for close consideration of that core question.” The Court also suggested that the opinion of a State’s Attorney General on a matter of state law was entitled to respect.
Here, Judge Bolton failed to give the State the respect it was due on this issue. Indeed, it is strong evidence of an activist judge straining to find a way to stop a law that she does not like from a policy (not a legal) standpoint. It is also completely contrary to federal law that specifically requires federal officials to “respond to an inquiry by a…State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual.” (8 U.S.C. §1373). How can Judge Bolton rationally conclude that Arizona is placing an impermissible burden on the federal government to respond to citizenship verification requests when federal law mandates that the feds respond to such requests? The judge’s reasoning is foolish – she is treating the Obama administration’s enforcement priorities (or lack of enforcement priorities) as if they are federal law. Arizona’s law does not conflict with federal immigration law, although it may conflict with the Obama administration’s policies. But policy conflicts do not result in federal preemption. Judge Bolton’s reasoning also conflicts with a very recent First Circuit Court of Appeals decision, Estrada v. Rhode Island, that upheld the right of state law enforcement officers to check the immigration status of individuals detained for other reasons such as a traffic stop, as well as other precedents.
The judge also temporarily halted Arizona’s attempt to make it a state crime for an alien to not carry alien registration papers despite the fact that under federal law ((8 U.S.C. § 1304), all aliens are required to “at all times carry with him and have in his personal possession any certificate of alien registration” issued by the federal government. Contrary to Judge Bolton’s view, there is no violation of the Constitution because a state has added state penalties on top of federal penalties for the same offense. Otherwise, it would be unlawful for states to punish possession of illegal drugs since that is already a federal offense. Unfortunately, this type of tortured reasoning is applied by the judge to other provisions of the Arizona law.
Arizona should continue its court fight to implement all of the provisions of the Arizona law. The chances are very good as this case works its way up through the courts and eventually to the U.S. Supreme Court, that Arizona will win in the end. It is a battle well worth fighting and it is one that other states should join, particularly in the face of this administration’s refusal to take the steps necessary to secure our borders and protect our national security. In fact, if other states participate in this battle in other federal circuits, it is highly likely that they will get rulings directly conflicting with Judge Bolton’s erroneous decision. The Justice Department should be forced to fight as many states as possible on this issue.
On Arizona and Immigration: Judge Ignores Rule of Law
Posted July 28th, 2010 at 5:12pm in Protect America, Rule of Law with 36 comments Print This Post
As everyone knows, Arizona, chafed by the Federal government’s inability to control the flow of illegal immigrants into the State, enacted Senate Bill 1070 (PDF) in an effort to do something about the resulting collateral damage to it and its citizens. Now, a federal judge appointed by President Clinton, Susan Bolton, has temporarily blocked enforcement of portions of S.B. 1070, reasoning that those portions interfere with the Federal government’s system of immigration laws.
Significantly, Judge Bolton rejected the demand by the Obama Justice Department that the entire law be struck down. In fact, the judge upheld twelve different provisions of the law, including a prohibition on Arizona officials limiting the enforcement of federal immigration laws and another that allows Arizona citizens to sue any state official that adopts a policy of restricting such enforcement. The judge also upheld parts of the law intended to stop human smuggling, such as a provision that makes it possible to impound vehicles used to transport or harbor unlawfully present aliens.
Unfortunately, however, Judge Bolton (using very fallacious reasoning) did preliminarily block provisions (1) calling for Arizona law enforcement officials to verify the immigration status of individuals who are arrested when an officer has a reasonable suspicion that they are an illegal alien; (2) making it a state crime to violate federal alien registration requirements; (3) creating a crime for an illegal alien to solicit, apply for, or perform work; and (4) authorizing an arrest when there is probable cause to believe that an individual is removable from the U.S.
Of course, to come to that conclusion, the judge had to torture the language of the Arizona statute, ignore federal law and precedent, and come to an illogical conclusion about the supposed burdens placed on the federal government by the Arizona law.
For example, Section 2(B) of S.B. 1070 states very clearly that:
For any lawful stop, detention or arrest made by [an Arizona] law enforcement official…in the enforcement of any other law or ordinance…where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States, a reasonable effort shall be made…to determine the immigration status of the person, except if the determination may hinder or obstruct an investigation. Any person who is arrested shall have the person’s immigration status determined before the person is released.
This paragraph could not be clearer – the immigration status of individuals who have been arrested for some other crime will only be checked if the officer has a “reasonable suspicion” that they are an illegal alien. Yet the federal judge reads the second sentence of this paragraph without reference to the first as supposedly requiring that the immigration status of all arrestees must be determined, despite Arizona’s claims to the contrary. In other words, she completely ignores the first sentence and then claims that checking the immigration status of all arrestees would be an impermissible burden on the federal government.
This reading of the Arizona statute is illogical and the judge’s refusal to defer to Arizona’s construction of its own law is legally improper and certainly unnecessary, except for an activist judge with an agenda. In 1997, the Supreme Court chastised the Ninth Circuit and an Arizona district court for their treatment of a limiting construction of a state law suggested by the Arizona Attorney General and the recommendation that the Arizona Supreme Court be asked for its opinion of the proper construction of state law. The Court unanimously said that the federal courts should ask, “Is this conflict really necessary? When anticipatory relief is sought in federal court against a state statute, respect for the States in our federal system calls for close consideration of that core question.” The Court also suggested that the opinion of a State’s Attorney General on a matter of state law was entitled to respect.
Here, Judge Bolton failed to give the State the respect it was due on this issue. Indeed, it is strong evidence of an activist judge straining to find a way to stop a law that she does not like from a policy (not a legal) standpoint. It is also completely contrary to federal law that specifically requires federal officials to “respond to an inquiry by a…State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual.” (8 U.S.C. §1373). How can Judge Bolton rationally conclude that Arizona is placing an impermissible burden on the federal government to respond to citizenship verification requests when federal law mandates that the feds respond to such requests? The judge’s reasoning is foolish – she is treating the Obama administration’s enforcement priorities (or lack of enforcement priorities) as if they are federal law. Arizona’s law does not conflict with federal immigration law, although it may conflict with the Obama administration’s policies. But policy conflicts do not result in federal preemption. Judge Bolton’s reasoning also conflicts with a very recent First Circuit Court of Appeals decision, Estrada v. Rhode Island, that upheld the right of state law enforcement officers to check the immigration status of individuals detained for other reasons such as a traffic stop, as well as other precedents.
The judge also temporarily halted Arizona’s attempt to make it a state crime for an alien to not carry alien registration papers despite the fact that under federal law ((8 U.S.C. § 1304), all aliens are required to “at all times carry with him and have in his personal possession any certificate of alien registration” issued by the federal government. Contrary to Judge Bolton’s view, there is no violation of the Constitution because a state has added state penalties on top of federal penalties for the same offense. Otherwise, it would be unlawful for states to punish possession of illegal drugs since that is already a federal offense. Unfortunately, this type of tortured reasoning is applied by the judge to other provisions of the Arizona law.
Arizona should continue its court fight to implement all of the provisions of the Arizona law. The chances are very good as this case works its way up through the courts and eventually to the U.S. Supreme Court, that Arizona will win in the end. It is a battle well worth fighting and it is one that other states should join, particularly in the face of this administration’s refusal to take the steps necessary to secure our borders and protect our national security. In fact, if other states participate in this battle in other federal circuits, it is highly likely that they will get rulings directly conflicting with Judge Bolton’s erroneous decision. The Justice Department should be forced to fight as many states as possible on this issue.
SEC Says New Financial Regulations Law Exempts It From Public Disclosure Laws Like FOIA
From Liberty Pulse and FOX Business News:
SEC Says New Financial Regulation Law Exempts it From Public Disclosure
By Dunstan Prial
Published July 28, 2010
FOXBusiness
Print Email Share Comments (458) Text Size
So much for transparency.
Under a little-noticed provision of the recently passed financial-reform legislation, the Securities and Exchange Commission no longer has to comply with virtually all requests for information releases from the public, including those filed under the Freedom of Information Act.
The law, signed last week by President Obama, exempts the SEC from disclosing records or information derived from "surveillance, risk assessments, or other regulatory and oversight activities." Given that the SEC is a regulatory body, the provision covers almost every action by the agency, lawyers say. Congress and federal agencies can request information, but the public cannot.
That argument comes despite the President saying that one of the cornerstones of the sweeping new legislation was more transparent financial markets. Indeed, in touting the new law, Obama specifically said it would “increase transparency in financial dealings."
The SEC cited the new law Tuesday in a FOIA action brought by FOX Business Network. Steven Mintz, founding partner of law firm Mintz & Gold LLC in New York, lamented what he described as “the backroom deal that was cut between Congress and the SEC to keep the SEC’s failures secret. The only losers here are the American public.”
Related Links
READ: Rep. Issa's Response to New FOIA Exemptions in FinReg
Durable Goods, Boeing Weigh Heavily on Markets
BofA, Citi, Wells Fargo Outlook Negative: Moody's
Durable Goods Orders Fall Unexpectedly in JuneIf the SEC’s interpretation stands, Mintz, who represents FOX Business Network, predicted “the next time there is a Bernie Madoff failure the American public will not be able to obtain the SEC documents that describe the failure,” referring to the shamed broker whose Ponzi scheme cost investors billions.
"The new provision applies to information obtained through examinations or derived from that information," said SEC spokesman John Nester. "We are expanding our examination program's surveillance and risk assessment efforts in order to provide more sophisticated and effective Wall Street oversight. The success of these efforts depends on our ability to obtain documents and other information from brokers, investment advisers and other registrants. The new legislation makes certain that we can obtain documents from registrants for risk assessment and surveillance under similar conditions that already exist by law for our examinations. Because registrants insist on confidential treatment of their documents, this new provision also removes an opportunity for brokers, investment advisers and other registrants to refuse to cooperate with our examination document requests."
Criticism of the provision has been swift. “It allows the SEC to block the public’s access to virtually all SEC records,” said Gary Aguirre, a former SEC staff attorney-turned-whistleblower who had accused the agency of thwarting an investigation into hedge fund Pequot Asset Management in 2005. “It permits the SEC to promulgate its own rules and regulations regarding the disclosure of records without getting the approval of the Office of Management and Budget, which typically applies to all federal agencies.”
Aguirre used FOIA requests in his own lawsuit against the SEC, which the SEC settled this year by paying him $755,000. Aguirre, who was fired in September 2005, argued that supervisors at the SEC stymied an investigation of Pequot – a charge that prompted an investigation by the Senate Judiciary and Finance committees.
The SEC closed the case in 2006, but would re-open it three years later. This year, Pequot and its founder, Arthur Samberg, were forced to pay $28 million to settle insider-trading charges related to shares of Microsoft (MSFT: 26.03 ,+0.08 ,+0.31%). The settlement with Aguirre came shortly later.
“From November 2008 through January 2009, I relied heavily on records obtained from the SEC through FOIA in communications to the FBI, Senate investigators, and the SEC in arguing the SEC had botched its initial investigation of Pequot’s trading in Microsoft securities and thus the SEC should reopen it, which it did,” Aguirre said. “The new legislation closes access to such records, even when the investigation is closed.
“It is hard to imagine how the bill could be more counterproductive,” Aguirre added.
FOX Business Network sued the SEC in March 2009 over its failure to produce documents related to its failed investigations into alleged investment frauds being perpetrated by Madoff and R. Allen Stanford. Following the Madoff and Stanford arrests it, was revealed that the SEC conducted investigations into both men prior to their arrests but failed to uncover their alleged frauds.
FOX Business made its initial request to the SEC in February 2009 seeking any information related to the agency’s response to complaints, tips and inquiries or any potential violations of the securities law or wrongdoing by Stanford.
FOX Business has also filed lawsuits against the Treasury Department and Federal Reserve over their failure to respond to FOIA requests regarding use of the bailout funds and the Fed’s extended loan facilities. In February, the Federal Court in New York sided with FOX Business and ordered the Treasury to comply with its requests.
Last year, the network won a legal victory to force the release of documents related to New York University’s lawsuit against Madoff feeder Ezra Merkin.
FOX Business’ FOIA requests have so far led the SEC to release several important and damaging documents:
•FOX Business used the FOIA to obtain a 2005 survey that the SEC in Fort Worth was sending to Stanford investors. The survey showed that the SEC had suspicions about Stanford several years prior to the collapse of his $7 billion empire.
•FOX Business used the FOIA to obtain copies of emails between Federal Reserve lawyers, AIG and staff at the Federal Reserve Bank of New York in which it was revealed the Fed staffers knew that bailing out AIG would result in bonuses being paid.
Recently, TARP Congressional Oversight Panel chair Elizabeth Warren told FOX Business that the network’s Freedom of Information Act efforts played a “very important part” of the panel’s investigation into AIG.
Warren told the network the government “crossed a line” with the AIG bailout.
“FOX News and the congressional oversight panel has pushed, pushed, pushed, for transparency, give us the documents, let us look at everything. Your Freedom of Information Act suit, which ultimately produced 250,000 pages of documentation, was a very important part of our report. We were able to rely on the documents that you pried out for a significant part of our being able to put this report together,” Warren said.
The SEC first made its intention to block further FOIA requests known on Tuesday. FOX Business was preparing for another round of “skirmishes” with the SEC, according to Mintz, when the agency called and said it intended to use Section 929I of the 2000-page legislation to refuse FBN’s ongoing requests for information.
Mintz said the network will challenge the SEC’s interpretation of the law.
“I believe this is subject to challenge,” he said. “The contours will have to be figured out by a court.”
SEC Says New Financial Regulation Law Exempts it From Public Disclosure
By Dunstan Prial
Published July 28, 2010
FOXBusiness
Print Email Share Comments (458) Text Size
So much for transparency.
Under a little-noticed provision of the recently passed financial-reform legislation, the Securities and Exchange Commission no longer has to comply with virtually all requests for information releases from the public, including those filed under the Freedom of Information Act.
The law, signed last week by President Obama, exempts the SEC from disclosing records or information derived from "surveillance, risk assessments, or other regulatory and oversight activities." Given that the SEC is a regulatory body, the provision covers almost every action by the agency, lawyers say. Congress and federal agencies can request information, but the public cannot.
That argument comes despite the President saying that one of the cornerstones of the sweeping new legislation was more transparent financial markets. Indeed, in touting the new law, Obama specifically said it would “increase transparency in financial dealings."
The SEC cited the new law Tuesday in a FOIA action brought by FOX Business Network. Steven Mintz, founding partner of law firm Mintz & Gold LLC in New York, lamented what he described as “the backroom deal that was cut between Congress and the SEC to keep the SEC’s failures secret. The only losers here are the American public.”
Related Links
READ: Rep. Issa's Response to New FOIA Exemptions in FinReg
Durable Goods, Boeing Weigh Heavily on Markets
BofA, Citi, Wells Fargo Outlook Negative: Moody's
Durable Goods Orders Fall Unexpectedly in JuneIf the SEC’s interpretation stands, Mintz, who represents FOX Business Network, predicted “the next time there is a Bernie Madoff failure the American public will not be able to obtain the SEC documents that describe the failure,” referring to the shamed broker whose Ponzi scheme cost investors billions.
"The new provision applies to information obtained through examinations or derived from that information," said SEC spokesman John Nester. "We are expanding our examination program's surveillance and risk assessment efforts in order to provide more sophisticated and effective Wall Street oversight. The success of these efforts depends on our ability to obtain documents and other information from brokers, investment advisers and other registrants. The new legislation makes certain that we can obtain documents from registrants for risk assessment and surveillance under similar conditions that already exist by law for our examinations. Because registrants insist on confidential treatment of their documents, this new provision also removes an opportunity for brokers, investment advisers and other registrants to refuse to cooperate with our examination document requests."
Criticism of the provision has been swift. “It allows the SEC to block the public’s access to virtually all SEC records,” said Gary Aguirre, a former SEC staff attorney-turned-whistleblower who had accused the agency of thwarting an investigation into hedge fund Pequot Asset Management in 2005. “It permits the SEC to promulgate its own rules and regulations regarding the disclosure of records without getting the approval of the Office of Management and Budget, which typically applies to all federal agencies.”
Aguirre used FOIA requests in his own lawsuit against the SEC, which the SEC settled this year by paying him $755,000. Aguirre, who was fired in September 2005, argued that supervisors at the SEC stymied an investigation of Pequot – a charge that prompted an investigation by the Senate Judiciary and Finance committees.
The SEC closed the case in 2006, but would re-open it three years later. This year, Pequot and its founder, Arthur Samberg, were forced to pay $28 million to settle insider-trading charges related to shares of Microsoft (MSFT: 26.03 ,+0.08 ,+0.31%). The settlement with Aguirre came shortly later.
“From November 2008 through January 2009, I relied heavily on records obtained from the SEC through FOIA in communications to the FBI, Senate investigators, and the SEC in arguing the SEC had botched its initial investigation of Pequot’s trading in Microsoft securities and thus the SEC should reopen it, which it did,” Aguirre said. “The new legislation closes access to such records, even when the investigation is closed.
“It is hard to imagine how the bill could be more counterproductive,” Aguirre added.
FOX Business Network sued the SEC in March 2009 over its failure to produce documents related to its failed investigations into alleged investment frauds being perpetrated by Madoff and R. Allen Stanford. Following the Madoff and Stanford arrests it, was revealed that the SEC conducted investigations into both men prior to their arrests but failed to uncover their alleged frauds.
FOX Business made its initial request to the SEC in February 2009 seeking any information related to the agency’s response to complaints, tips and inquiries or any potential violations of the securities law or wrongdoing by Stanford.
FOX Business has also filed lawsuits against the Treasury Department and Federal Reserve over their failure to respond to FOIA requests regarding use of the bailout funds and the Fed’s extended loan facilities. In February, the Federal Court in New York sided with FOX Business and ordered the Treasury to comply with its requests.
Last year, the network won a legal victory to force the release of documents related to New York University’s lawsuit against Madoff feeder Ezra Merkin.
FOX Business’ FOIA requests have so far led the SEC to release several important and damaging documents:
•FOX Business used the FOIA to obtain a 2005 survey that the SEC in Fort Worth was sending to Stanford investors. The survey showed that the SEC had suspicions about Stanford several years prior to the collapse of his $7 billion empire.
•FOX Business used the FOIA to obtain copies of emails between Federal Reserve lawyers, AIG and staff at the Federal Reserve Bank of New York in which it was revealed the Fed staffers knew that bailing out AIG would result in bonuses being paid.
Recently, TARP Congressional Oversight Panel chair Elizabeth Warren told FOX Business that the network’s Freedom of Information Act efforts played a “very important part” of the panel’s investigation into AIG.
Warren told the network the government “crossed a line” with the AIG bailout.
“FOX News and the congressional oversight panel has pushed, pushed, pushed, for transparency, give us the documents, let us look at everything. Your Freedom of Information Act suit, which ultimately produced 250,000 pages of documentation, was a very important part of our report. We were able to rely on the documents that you pried out for a significant part of our being able to put this report together,” Warren said.
The SEC first made its intention to block further FOIA requests known on Tuesday. FOX Business was preparing for another round of “skirmishes” with the SEC, according to Mintz, when the agency called and said it intended to use Section 929I of the 2000-page legislation to refuse FBN’s ongoing requests for information.
Mintz said the network will challenge the SEC’s interpretation of the law.
“I believe this is subject to challenge,” he said. “The contours will have to be figured out by a court.”
Judicial Tyranny And The Loss Of Self-Government
From Articles Base:
Judicial Tyranny and the Loss of Self-Government
Edit Article
Posted: Jul 04, 2010
I am not a Chicken Little and I dont often write about political matters, but the issue of judicial tyranny and the encroaching loss of selfgovernment in America have reached a crisis and a crossroad for Christian leaders. Never in our history as a nation have judges so arrogantly implanted their own views into the law, making it up according to their own leftist policy prescriptions instead of interpreting it as the Congress and the Constitution require.
The list of cases where judges have abused their authority and given us decisions that mock God or violate the will of the American people is intolerably long. During my lifetime alone, we have witnessed U.S. Supreme Court opinions scrubbing prayer from public schools, then the Lords Prayer and the reading of Bible passages were banned, and then the Ten Commandments were stripped from the schools. The Court also legalized abortion, then extended abortion to the entire nine months of gestation, and recently legalized homosexual sodomy. And in order to achieve its own foreordained policy results, recent opinions of the high court have been cavalier in overturning its own precedent and in looking to foreign law for guidance.
Our federal government is increasingly out of balance, and out of tune with both the law of God and the will of the people. And only we"We the People"can put it right again.
The United States Constitution empowers the President ¦ to nominate, and by and with the advice and consent of the Senate, to appoint¦ judges of the Supreme Court. However, a handful of U.S. senators are, by misusing the Senates rule on filibuster, engaging in a constitutional travesty. Democratic senators have been filibustering judges chosen by President Bush to serve on the federal courts"and blocking a full and fair vote on these nominees by the entire Senate. If the full Senate were allowed to vote on these fine judges, they would easily be confirmed. But a hostile minority is using the filibuster tactic to prevent such a vote"purely for ideological reasons, and acting as if the Senate has equal say with the president about who sits on the court. That is nonsense.
The Constitution could not be clearer. The nomination to the court is made by the president alone. The Senate is to give its advice and consent" not demand, as in the case of abortion, a politically partisan vote beforehand. The advice and consent clause, Alexander Hamilton wrote in the Federalist Papers #76, was intended to provide a check upon a president who would, say, appoint his brother, or engage in favoritism, or reward personal benefactors" nothing more. And yet, today a Senate minority is using the filibuster to prevent a vote on highly qualified judges, like Bill Pryor or Miguel Estrada, an able Hispanic lawyer who was nominated and had to be withdrawn, and Janice Brown, an African-American judge from California.
The grounds for opposition are not what the framers intended"they are purely political"they simply dont like what the judges believe. This unethical and misapplied filibuster should offend us for another reason. Americas founders, informed by their biblical understanding of the Fall, provided for a system of checks and balances so that political power would not be overly concentrated and corrupted"so that no one branch of government would have power over the other. But today a minority in the Congress is holding hostage judges nominated by the president. This is a fundamental assault on both creative authority and an independent judiciary and a violation of the separation of powers.
The behavior of Democratic Senators who once hated, but now fully support, the filibuster is rank hypocrisy. But they do it because it protects the only avenue left for leftist governance"the courts. California Sen. Barbara Boxer was a lifelong opponent of judicial nomination filibusters. Suddenly the light dawned, and now she realizes how wrong she was to oppose them: I thought I knew everything. I didnt get it¦ I am here to say I was totally wrong.
Many other leading Democratic senators have had similar, 180- degree changes of view. Ted Kennedy, Joe Biden, Robert Byrd, Tom Harkin, Joe Lieberman, Pat Leahy, and Chuck Schumer have all vigorously opposed the use of the filibuster against judicial nominations. Sen. Schumer was for voting judicial nominations up or down without delay. Sen. Leahy flatly opposed a filibuster against Clarence Thomass Supreme Court nomination: The president and the nominee and all Americans deserve an up-or-down vote. Sen. Kennedy held that, Senators who believe in fairness will not let the minority of the Senate deny [the nominee] his vote by the entire Senate. Sen. Harkin believed, The filibuster rules are unconstitutional.
But that was then, when Democrats controlled the Senate. Now, they are a frustrated minority and things are very different. Sen. Leahy has voted against cloture to end filibusters 21 out of 26 times; Sen. Kennedy, 18 out of 23. Now all these Senators practice and defend the use of filibusters against judicial nominees. Of the 51 judges President Bush has nominated for the circuit courts of appeals, 35 have been confirmed, 10 have been filibustered, and six were threatened with a filibuster, so no action has been taken on their nomination. Mr. Bush nominated Justice Priscilla Owen of the Texas Supreme Court for the Fifth U.S. Circuit Court of Appeals nearly four years ago. She has the highest possible rating from the American Bar Association, but has been filibustered four times by a Senate minority that once devoutly believed filibustering was morally wrong and clearly unconstitutional.Web counselor plays a vital role for the welfare of society.
The time is past due to reign in leftist judges who flout the law of God and pervert the will of the American people. We sent out a CounselAlert in early April when the Senate was debating whether to change its rules so that a simple majority could confirm a judge. The phone lines were jammed. Our goal is to prevent judicial nominees from being filibustered and allow a simple upand- down vote by the full Senate of the presidents nominees. It would not affect the filibuster in any area of other legislative action.
Clearly it is time to act. Id love to hear your thoughts.
About the Author
eCounseling.com is the only online counseling help website that allows clients and counselors to connect online - with no software to download or cumbersome technology! It seeks to be an excellent information resource for consumers, and to connect prospective counseling clients to counseling professionals 24 hours a day, 7 days a week, and 365 days a year. Its director is himself trained professional Ryan Thomas Neace.
Article Source: http://www.articlesbase.com/ - Judicial Tyranny and the Loss of Self-Government
I am not a Chicken Little and I dont often write about political matters, but the issue of judicial tyranny and the encroaching loss of selfgovernment in America have reached a crisis and a crossroad for Christian leaders. Never in our history as a nation have judges so arrogantly implanted their own views into the law, making it up according to their own leftist policy prescriptions instead of interpreting it as the Congress and the Constitution require.
The list of cases where judges have abused their authority and given us decisions that mock God or violate the will of the American people is intolerably long. During my lifetime alone, we have witnessed U.S. Supreme Court opinions scrubbing prayer from public schools, then the Lords Prayer and the reading of Bible passages were banned, and then the Ten Commandments were stripped from the schools. The Court also legalized abortion, then extended abortion to the entire nine months of gestation, and recently legalized homosexual sodomy. And in order to achieve its own foreordained policy results, recent opinions of the high court have been cavalier in overturning its own precedent and in looking to foreign law for guidance.
Our federal government is increasingly out of balance, and out of tune with both the law of God and the will of the people. And only we"We the People"can put it right again.
The United States Constitution empowers the President ¦ to nominate, and by and with the advice and consent of the Senate, to appoint¦ judges of the Supreme Court. However, a handful of U.S. senators are, by misusing the Senates rule on filibuster, engaging in a constitutional travesty. Democratic senators have been filibustering judges chosen by President Bush to serve on the federal courts"and blocking a full and fair vote on these nominees by the entire Senate. If the full Senate were allowed to vote on these fine judges, they would easily be confirmed. But a hostile minority is using the filibuster tactic to prevent such a vote"purely for ideological reasons, and acting as if the Senate has equal say with the president about who sits on the court. That is nonsense.
The Constitution could not be clearer. The nomination to the court is made by the president alone. The Senate is to give its advice and consent" not demand, as in the case of abortion, a politically partisan vote beforehand. The advice and consent clause, Alexander Hamilton wrote in the Federalist Papers #76, was intended to provide a check upon a president who would, say, appoint his brother, or engage in favoritism, or reward personal benefactors" nothing more. And yet, today a Senate minority is using the filibuster to prevent a vote on highly qualified judges, like Bill Pryor or Miguel Estrada, an able Hispanic lawyer who was nominated and had to be withdrawn, and Janice Brown, an African-American judge from California.
The grounds for opposition are not what the framers intended"they are purely political"they simply dont like what the judges believe. This unethical and misapplied filibuster should offend us for another reason. Americas founders, informed by their biblical understanding of the Fall, provided for a system of checks and balances so that political power would not be overly concentrated and corrupted"so that no one branch of government would have power over the other. But today a minority in the Congress is holding hostage judges nominated by the president. This is a fundamental assault on both creative authority and an independent judiciary and a violation of the separation of powers.
The behavior of Democratic Senators who once hated, but now fully support, the filibuster is rank hypocrisy. But they do it because it protects the only avenue left for leftist governance"the courts. California Sen. Barbara Boxer was a lifelong opponent of judicial nomination filibusters. Suddenly the light dawned, and now she realizes how wrong she was to oppose them: I thought I knew everything. I didnt get it¦ I am here to say I was totally wrong.
Many other leading Democratic senators have had similar, 180- degree changes of view. Ted Kennedy, Joe Biden, Robert Byrd, Tom Harkin, Joe Lieberman, Pat Leahy, and Chuck Schumer have all vigorously opposed the use of the filibuster against judicial nominations. Sen. Schumer was for voting judicial nominations up or down without delay. Sen. Leahy flatly opposed a filibuster against Clarence Thomass Supreme Court nomination: The president and the nominee and all Americans deserve an up-or-down vote. Sen. Kennedy held that, Senators who believe in fairness will not let the minority of the Senate deny [the nominee] his vote by the entire Senate. Sen. Harkin believed, The filibuster rules are unconstitutional.
But that was then, when Democrats controlled the Senate. Now, they are a frustrated minority and things are very different. Sen. Leahy has voted against cloture to end filibusters 21 out of 26 times; Sen. Kennedy, 18 out of 23. Now all these Senators practice and defend the use of filibusters against judicial nominees. Of the 51 judges President Bush has nominated for the circuit courts of appeals, 35 have been confirmed, 10 have been filibustered, and six were threatened with a filibuster, so no action has been taken on their nomination. Mr. Bush nominated Justice Priscilla Owen of the Texas Supreme Court for the Fifth U.S. Circuit Court of Appeals nearly four years ago. She has the highest possible rating from the American Bar Association, but has been filibustered four times by a Senate minority that once devoutly believed filibustering was morally wrong and clearly unconstitutional.Web counselor plays a vital role for the welfare of society.
The time is past due to reign in leftist judges who flout the law of God and pervert the will of the American people. We sent out a CounselAlert in early April when the Senate was debating whether to change its rules so that a simple majority could confirm a judge. The phone lines were jammed. Our goal is to prevent judicial nominees from being filibustered and allow a simple upand- down vote by the full Senate of the presidents nominees. It would not affect the filibuster in any area of other legislative action.
Clearly it is time to act. Id love to hear your thoughts.
Retrieved from "http://www.articlesbase.com/mental-health-articles/judicial-tyranny-and-the-loss-of-self-government-2775060.html"
(ArticlesBase SC #2775060)
Ryan Thomas Neace - About the Author:
eCounseling.com is the only online counseling help website that allows clients and counselors to connect online - with no software to download or cumbersome technology! It seeks to be an excellent information resource for consumers, and to connect prospective counseling clients to counseling professionals 24 hours a day, 7 days a week, and 365 days a year. Its director is himself trained professional Ryan Thomas Neace.
Read more: http://www.articlesbase.com/mental-health-articles/judicial-tyranny-and-the-loss-of-self-government-2775060.html#ixzz0v7Z2KQQu
Under Creative Commons License: Attribution
Judicial Tyranny and the Loss of Self-Government
Edit Article
Posted: Jul 04, 2010
I am not a Chicken Little and I dont often write about political matters, but the issue of judicial tyranny and the encroaching loss of selfgovernment in America have reached a crisis and a crossroad for Christian leaders. Never in our history as a nation have judges so arrogantly implanted their own views into the law, making it up according to their own leftist policy prescriptions instead of interpreting it as the Congress and the Constitution require.
The list of cases where judges have abused their authority and given us decisions that mock God or violate the will of the American people is intolerably long. During my lifetime alone, we have witnessed U.S. Supreme Court opinions scrubbing prayer from public schools, then the Lords Prayer and the reading of Bible passages were banned, and then the Ten Commandments were stripped from the schools. The Court also legalized abortion, then extended abortion to the entire nine months of gestation, and recently legalized homosexual sodomy. And in order to achieve its own foreordained policy results, recent opinions of the high court have been cavalier in overturning its own precedent and in looking to foreign law for guidance.
Our federal government is increasingly out of balance, and out of tune with both the law of God and the will of the people. And only we"We the People"can put it right again.
The United States Constitution empowers the President ¦ to nominate, and by and with the advice and consent of the Senate, to appoint¦ judges of the Supreme Court. However, a handful of U.S. senators are, by misusing the Senates rule on filibuster, engaging in a constitutional travesty. Democratic senators have been filibustering judges chosen by President Bush to serve on the federal courts"and blocking a full and fair vote on these nominees by the entire Senate. If the full Senate were allowed to vote on these fine judges, they would easily be confirmed. But a hostile minority is using the filibuster tactic to prevent such a vote"purely for ideological reasons, and acting as if the Senate has equal say with the president about who sits on the court. That is nonsense.
The Constitution could not be clearer. The nomination to the court is made by the president alone. The Senate is to give its advice and consent" not demand, as in the case of abortion, a politically partisan vote beforehand. The advice and consent clause, Alexander Hamilton wrote in the Federalist Papers #76, was intended to provide a check upon a president who would, say, appoint his brother, or engage in favoritism, or reward personal benefactors" nothing more. And yet, today a Senate minority is using the filibuster to prevent a vote on highly qualified judges, like Bill Pryor or Miguel Estrada, an able Hispanic lawyer who was nominated and had to be withdrawn, and Janice Brown, an African-American judge from California.
The grounds for opposition are not what the framers intended"they are purely political"they simply dont like what the judges believe. This unethical and misapplied filibuster should offend us for another reason. Americas founders, informed by their biblical understanding of the Fall, provided for a system of checks and balances so that political power would not be overly concentrated and corrupted"so that no one branch of government would have power over the other. But today a minority in the Congress is holding hostage judges nominated by the president. This is a fundamental assault on both creative authority and an independent judiciary and a violation of the separation of powers.
The behavior of Democratic Senators who once hated, but now fully support, the filibuster is rank hypocrisy. But they do it because it protects the only avenue left for leftist governance"the courts. California Sen. Barbara Boxer was a lifelong opponent of judicial nomination filibusters. Suddenly the light dawned, and now she realizes how wrong she was to oppose them: I thought I knew everything. I didnt get it¦ I am here to say I was totally wrong.
Many other leading Democratic senators have had similar, 180- degree changes of view. Ted Kennedy, Joe Biden, Robert Byrd, Tom Harkin, Joe Lieberman, Pat Leahy, and Chuck Schumer have all vigorously opposed the use of the filibuster against judicial nominations. Sen. Schumer was for voting judicial nominations up or down without delay. Sen. Leahy flatly opposed a filibuster against Clarence Thomass Supreme Court nomination: The president and the nominee and all Americans deserve an up-or-down vote. Sen. Kennedy held that, Senators who believe in fairness will not let the minority of the Senate deny [the nominee] his vote by the entire Senate. Sen. Harkin believed, The filibuster rules are unconstitutional.
But that was then, when Democrats controlled the Senate. Now, they are a frustrated minority and things are very different. Sen. Leahy has voted against cloture to end filibusters 21 out of 26 times; Sen. Kennedy, 18 out of 23. Now all these Senators practice and defend the use of filibusters against judicial nominees. Of the 51 judges President Bush has nominated for the circuit courts of appeals, 35 have been confirmed, 10 have been filibustered, and six were threatened with a filibuster, so no action has been taken on their nomination. Mr. Bush nominated Justice Priscilla Owen of the Texas Supreme Court for the Fifth U.S. Circuit Court of Appeals nearly four years ago. She has the highest possible rating from the American Bar Association, but has been filibustered four times by a Senate minority that once devoutly believed filibustering was morally wrong and clearly unconstitutional.Web counselor plays a vital role for the welfare of society.
The time is past due to reign in leftist judges who flout the law of God and pervert the will of the American people. We sent out a CounselAlert in early April when the Senate was debating whether to change its rules so that a simple majority could confirm a judge. The phone lines were jammed. Our goal is to prevent judicial nominees from being filibustered and allow a simple upand- down vote by the full Senate of the presidents nominees. It would not affect the filibuster in any area of other legislative action.
Clearly it is time to act. Id love to hear your thoughts.
About the Author
eCounseling.com is the only online counseling help website that allows clients and counselors to connect online - with no software to download or cumbersome technology! It seeks to be an excellent information resource for consumers, and to connect prospective counseling clients to counseling professionals 24 hours a day, 7 days a week, and 365 days a year. Its director is himself trained professional Ryan Thomas Neace.
(ArticlesBase SC #2775060)
Article Source: http://www.articlesbase.com/ - Judicial Tyranny and the Loss of Self-Government
I am not a Chicken Little and I dont often write about political matters, but the issue of judicial tyranny and the encroaching loss of selfgovernment in America have reached a crisis and a crossroad for Christian leaders. Never in our history as a nation have judges so arrogantly implanted their own views into the law, making it up according to their own leftist policy prescriptions instead of interpreting it as the Congress and the Constitution require.
The list of cases where judges have abused their authority and given us decisions that mock God or violate the will of the American people is intolerably long. During my lifetime alone, we have witnessed U.S. Supreme Court opinions scrubbing prayer from public schools, then the Lords Prayer and the reading of Bible passages were banned, and then the Ten Commandments were stripped from the schools. The Court also legalized abortion, then extended abortion to the entire nine months of gestation, and recently legalized homosexual sodomy. And in order to achieve its own foreordained policy results, recent opinions of the high court have been cavalier in overturning its own precedent and in looking to foreign law for guidance.
Our federal government is increasingly out of balance, and out of tune with both the law of God and the will of the people. And only we"We the People"can put it right again.
The United States Constitution empowers the President ¦ to nominate, and by and with the advice and consent of the Senate, to appoint¦ judges of the Supreme Court. However, a handful of U.S. senators are, by misusing the Senates rule on filibuster, engaging in a constitutional travesty. Democratic senators have been filibustering judges chosen by President Bush to serve on the federal courts"and blocking a full and fair vote on these nominees by the entire Senate. If the full Senate were allowed to vote on these fine judges, they would easily be confirmed. But a hostile minority is using the filibuster tactic to prevent such a vote"purely for ideological reasons, and acting as if the Senate has equal say with the president about who sits on the court. That is nonsense.
The Constitution could not be clearer. The nomination to the court is made by the president alone. The Senate is to give its advice and consent" not demand, as in the case of abortion, a politically partisan vote beforehand. The advice and consent clause, Alexander Hamilton wrote in the Federalist Papers #76, was intended to provide a check upon a president who would, say, appoint his brother, or engage in favoritism, or reward personal benefactors" nothing more. And yet, today a Senate minority is using the filibuster to prevent a vote on highly qualified judges, like Bill Pryor or Miguel Estrada, an able Hispanic lawyer who was nominated and had to be withdrawn, and Janice Brown, an African-American judge from California.
The grounds for opposition are not what the framers intended"they are purely political"they simply dont like what the judges believe. This unethical and misapplied filibuster should offend us for another reason. Americas founders, informed by their biblical understanding of the Fall, provided for a system of checks and balances so that political power would not be overly concentrated and corrupted"so that no one branch of government would have power over the other. But today a minority in the Congress is holding hostage judges nominated by the president. This is a fundamental assault on both creative authority and an independent judiciary and a violation of the separation of powers.
The behavior of Democratic Senators who once hated, but now fully support, the filibuster is rank hypocrisy. But they do it because it protects the only avenue left for leftist governance"the courts. California Sen. Barbara Boxer was a lifelong opponent of judicial nomination filibusters. Suddenly the light dawned, and now she realizes how wrong she was to oppose them: I thought I knew everything. I didnt get it¦ I am here to say I was totally wrong.
Many other leading Democratic senators have had similar, 180- degree changes of view. Ted Kennedy, Joe Biden, Robert Byrd, Tom Harkin, Joe Lieberman, Pat Leahy, and Chuck Schumer have all vigorously opposed the use of the filibuster against judicial nominations. Sen. Schumer was for voting judicial nominations up or down without delay. Sen. Leahy flatly opposed a filibuster against Clarence Thomass Supreme Court nomination: The president and the nominee and all Americans deserve an up-or-down vote. Sen. Kennedy held that, Senators who believe in fairness will not let the minority of the Senate deny [the nominee] his vote by the entire Senate. Sen. Harkin believed, The filibuster rules are unconstitutional.
But that was then, when Democrats controlled the Senate. Now, they are a frustrated minority and things are very different. Sen. Leahy has voted against cloture to end filibusters 21 out of 26 times; Sen. Kennedy, 18 out of 23. Now all these Senators practice and defend the use of filibusters against judicial nominees. Of the 51 judges President Bush has nominated for the circuit courts of appeals, 35 have been confirmed, 10 have been filibustered, and six were threatened with a filibuster, so no action has been taken on their nomination. Mr. Bush nominated Justice Priscilla Owen of the Texas Supreme Court for the Fifth U.S. Circuit Court of Appeals nearly four years ago. She has the highest possible rating from the American Bar Association, but has been filibustered four times by a Senate minority that once devoutly believed filibustering was morally wrong and clearly unconstitutional.Web counselor plays a vital role for the welfare of society.
The time is past due to reign in leftist judges who flout the law of God and pervert the will of the American people. We sent out a CounselAlert in early April when the Senate was debating whether to change its rules so that a simple majority could confirm a judge. The phone lines were jammed. Our goal is to prevent judicial nominees from being filibustered and allow a simple upand- down vote by the full Senate of the presidents nominees. It would not affect the filibuster in any area of other legislative action.
Clearly it is time to act. Id love to hear your thoughts.
Retrieved from "http://www.articlesbase.com/mental-health-articles/judicial-tyranny-and-the-loss-of-self-government-2775060.html"
(ArticlesBase SC #2775060)
Ryan Thomas Neace - About the Author:
eCounseling.com is the only online counseling help website that allows clients and counselors to connect online - with no software to download or cumbersome technology! It seeks to be an excellent information resource for consumers, and to connect prospective counseling clients to counseling professionals 24 hours a day, 7 days a week, and 365 days a year. Its director is himself trained professional Ryan Thomas Neace.
Read more: http://www.articlesbase.com/mental-health-articles/judicial-tyranny-and-the-loss-of-self-government-2775060.html#ixzz0v7Z2KQQu
Under Creative Commons License: Attribution
Judicial Tyranny
From Stand To Reason:
Judicial Tyranny
Gregory Koukl
It is not the court's job to do justice. It is the courts job to apply law. But you may ask what if the law is a immoral? My answer is that the courts have no right to strike it down. Once you allow them to do that you've given judges absolute power to decide what is right and wrong, and when that happens you and I become utterly without defense.
Trying to unscramble the rationale of court decisions now-a-days is an exercise in frustration. How does one make sense of all the legalese and the opinions of the army of pundits that parade across our screen on the evening news?
In the absence of a well developed understanding of how the judicial process works we are, more often then not, inclined to follow our moral instincts in judging the ruling of the courts. We try to think of what reflects our own moral code, our own understanding of right and wrong. Then we try to address the court's decision on that basis. But this sets us up for making a serious error. That error is arguing morally rather than legally on the issues before the Court.
Let me give you an example. A few weeks ago the Supreme Court handed down a decision on the Pennsylvania case, Casey vs. Planned Parenthood . Two senatorial candidates from this state were given an opportunity on local radio to comment on the High Court's ruling, first Democrat Barbara Boxer and then Republican Bruce Herschenson .
After Boxer had made her comments and departed, Herschenson made an interesting observation. He observed that his opponent had not made one comment about the Constitution. Instead she commented on the ideological issues the Court addressed. This was a profound error, he noted, because a Supreme Court judgment has one purpose and one purpose only, to adjudicate the Constitution, to render a judgment, to resolve a disputation. How do they do that? Not by deciding what is good, or what is right or what is fair. In other words, to render a judgment, to resolve a disputation between the law in the ruling of the lower court, on the one hand, and on the other, the law in the Constitution of the United States. It is their job to determine whether the law, in this case the Constitution, has been violated. That's all. That's it. End of issue.
As Herschenson pointed out, it doesn't matter really what any individual justice thinks about the issue, in this case abortion. It only matters what the Constitution says. That's what the Supreme Court is all about. That's what any court really is all about. It adjudicates the law as written.
When Randall Terry said that these judges in the Casey ruling let "us" down--the Christians, the conservatives, the pro-life contingent, whoever--he implied there was an ideology they were meant to represent, a loyalty that they had apparently abandoned. But this kind of thinking is very dangerous. Even though I agree with Randall Terry's general position on the morality of abortion, I disagree with the way he responded to the court.
I'm looking at an underlying current here, actually not underlying anymore, it's an overlying current that is very dangerous. This dangerous pattern is something that both liberals and conservatives are victimized by. To put it simply, when we address issues of the Court, if we start arguing with the Court's decision on a moral basis as opposed to a legal basis, we fall into the same trap.
Let me illustrate this for a minute because I realize some who are listening are going to think that the kind of thing that I'm saying now is completely contrary and opposite to the kind of thing that I've said for the last two and a half years on the air. Certainly, we do reason moralisticly in the marketplace. The question really that I'm addressing is whether it's appropriate to reason that way in the courts. Or does the court have a particular job and is that job limited and is it limited for a purpose? I would argue they have a particular job. It is a very limited job. It is limited for a very good purpose and that limitation protects you and I from tyranny.
Judge Bork recalls the story of two of the greatest figures in our law, Justice Holmes and Judge Learned Hand. As they were departing after having shared lunch together Hand, in a moment of effervescence and enthusiasm, raised his voice after the retreating Holmes in a final salutation, "Do justice, sir, do justice." Holmes stopped the carriage and corrected him. "That is not my job," he said. "It is my job to apply the law."[1]
Let that sink in a moment. It is not the court's job to do justice. It is the courts job to apply law.
But you may ask what if the law is a immoral? My answer is that the courts have no right to strike it down. Once you allow them to do that you've given judges absolute power to decide what is right and wrong, and when that happens you and I become utterly without defense.
Here's what I mean. There is a movie you all should see for a number of reasons, not the least of which has to do with the comments that are made in the film about this issue. But you'll have to go to the "Classics" section of the video store because precious little work has been produced in the past three decades that approaches the moral and intellectual magnitude of this film. The movie is called "A Man for All Seasons." Paul Scofield plays the lead as Sir Thomas Moore, Chancellor of England under Henry the VIII who was executed rather than surrender the leadership of the church to the King. He was a man of tremendous mental acumen, a fine legal mind, a great Christian, a martyr.
This issue of the law that we're discussing came up in the film. When Roper, the somewhat self-righteous suitor of Moore's daughter, asked Moore if he'd even give the devil the benefit of law, he said, "Yes. What would you do, cut a great road through the law to get after the devil."
"Yes," Roper replied, "I'd cut down every law in England to do that."
Sir Thomas Moore responded, "Oh? And when the last law was down and the devil turned round on you where would you hide, Roper, the laws all being flat? This country is planted thick with laws from coast to coast--man's laws, not God's--and if you cut them down...do you really think you could stand upright in the winds that would blow then? Yes, I give the benefit of law, for my own safety's sake."
You see, the danger today is that this principle has largely been abandoned. The law, the Constitution, is less and less something particular that can offer an unchanging standard. Instead revisionist judges see the Constitution as a "living document," changing from generation to generation, and therefore they can ignore the original intent of the framers. In one sense, as Moore put it, the laws are going flat and the winds are beginning to blow. But, I contend, it is only the original intent that can protect us from judicial tyranny.
Now let's talk just a minute about balance of power because this is really what's at issue here. This is the protective element that keeps us from being tyrannized by any segment of the government. It is the elected official's job to pass just laws. It's their job because they have accountability to the electorate. Judges, on the other hand, are only accountable to the law. They are not accountable to the electorate. They are not to be swayed by public opinion. For balance to work, they must be accountable to the law. That's the problem with judges legislating from the bench. There are no controls. Instead of sticking to the Constitution, today's revisionist judges are adjudicating on that which is not law. When they do that, they have both feet planted, as Dr. Francis Schaeffer said, in midair. This does not produce any kind of civil stability.
This introduces the whole problem with the so-called "litmus test." The litmus test refers to a particular ideological profile a justice must have before he can be approved. The expectation is that if a judge has a particular ideology--and therefore passes the test--then his decisions will reflect that ideology.
This is a profound error. The litmus test qualifies potential judges in an inappropriate way.
I have to confess, when I first heard that President Bush claimed he never discussed the abortion issue with any of his nominees I found it hard to believe. But now I understand why that wasn't necessary. Bush was concerned with judicial philosophy--as he should have been--and not with ideology. The teaching that a woman has a fundamental right to an abortion is not in the Constitution; it was the creation of a liberal court legislating personal ideology from the bench. Seating pro-life judges in the court only compounds the problem of bringing ideological battles into the courtroom.
There is another way to resolve this issue. Bush knew that a judge with a conservative view of law --not necessarily a conservative view of the issues--would solve the problem. If you let the Constitution be what it was meant to be and let the Court function the way it was meant to function, Roe would be overturned because judges that are not revisionists but are committed to original intent will not find a right to abortion in the Constitution because it's just not there. Strict constructionists will not read into the Constitution something that's not there. This frightens liberals.
This is precisely why conservatives don't need a litmus test of their judges and liberals demand one. They demand one because they must get an elitist court to accomplish for them what they have not been able to achieve democratically. And that is tyrannous.
It is not the judge's job to do good. Good is an ideological commodity, more often than not, something that means different things to different people. In a relativistic society plagued by competing moral ideologies it would be the kiss of death to give judges the liberty to adjudicate based on their own conscience.
The reason is there is no protection from elitism. Legislation, by its very design, is protected from elitism. Legislators are elected officials. They have accountability to the electorate. Not so the courts. They have become the breeding ground for elitist doctrines to be forced upon the common man. That is frightening.
This is why I am very uncomfortable with letters addressed to the court that argue on a moral basis. What is there that keeps judges from imposing moral and political agendas of their own that are not found in the Constitution just because they got a lot of letters from people saying they should do so? What protects us from moral relativism in the Court? The Constitution is supposed to protect us. The laws are supposed to protect us. Laws that are passed by a Congress which has accountability. The Congress is the place for agendas; not the Court. Judges should not be concerned with morality or with justice in the broader sense. The only justice they're to be concerned with is justice with the law at hand. Goodness, justice and morality in the larger sense are problems of the legislature, not the Court, because we can get at the legislature. We can't get at the Court. We dare not give them that power.
Our appeal to the Court should not be a moral one but a legal one. If you want to write to the Court, write this: Do the law. Stick with the law. Don't legislate from the bench. Don't do what you think is good and right and true. You do the law. That's your job.
The popular vote protects us from tyranny in the legislative and executive branches. But how do we keep the judicial branch from tyrannizing us? The law. If there is no protection in the law itself written by men and women who are elected by the people and sensitive to the will of the people, if the law is so much silly putty bent and molded by the prevailing ideology--liberal or conservative--a "living document" that takes on a different life for each judge that uses it, then there is nothing to keep judges from being tyrants.
And for those of you who think the word tyrant is a bit much, consider this. With one stroke of the pen in 1856, Judge Taney relegated Dred Scott and the rest of his race to the status of chattel property, without rights and without protection from the law. With one stroke of the pen judges 19 years ago swept 27 million unborn children to date into the grave, children without rights and without protection under the law. And with the same stroke of the pen the severely handicapped, the inconvenient, the helpless ones are one by one beginning to fall into that same abyss.
At least that's the way I see it.
[1] Bork, Robert H., The Tempting of America--The Political Seduction of the Law , (New York: Touchstone, 1990), p. 6.
This is a transcript of a commentary from the radio show "Stand to Reason," with Gregory Koukl. It is made available to you at no charge through the faithful giving of those who support Stand to Reason. Reproduction permitted for non-commercial use only. ©1992 Gregory Koukl
Judicial Tyranny
Gregory Koukl
It is not the court's job to do justice. It is the courts job to apply law. But you may ask what if the law is a immoral? My answer is that the courts have no right to strike it down. Once you allow them to do that you've given judges absolute power to decide what is right and wrong, and when that happens you and I become utterly without defense.
Trying to unscramble the rationale of court decisions now-a-days is an exercise in frustration. How does one make sense of all the legalese and the opinions of the army of pundits that parade across our screen on the evening news?
In the absence of a well developed understanding of how the judicial process works we are, more often then not, inclined to follow our moral instincts in judging the ruling of the courts. We try to think of what reflects our own moral code, our own understanding of right and wrong. Then we try to address the court's decision on that basis. But this sets us up for making a serious error. That error is arguing morally rather than legally on the issues before the Court.
Let me give you an example. A few weeks ago the Supreme Court handed down a decision on the Pennsylvania case, Casey vs. Planned Parenthood . Two senatorial candidates from this state were given an opportunity on local radio to comment on the High Court's ruling, first Democrat Barbara Boxer and then Republican Bruce Herschenson .
After Boxer had made her comments and departed, Herschenson made an interesting observation. He observed that his opponent had not made one comment about the Constitution. Instead she commented on the ideological issues the Court addressed. This was a profound error, he noted, because a Supreme Court judgment has one purpose and one purpose only, to adjudicate the Constitution, to render a judgment, to resolve a disputation. How do they do that? Not by deciding what is good, or what is right or what is fair. In other words, to render a judgment, to resolve a disputation between the law in the ruling of the lower court, on the one hand, and on the other, the law in the Constitution of the United States. It is their job to determine whether the law, in this case the Constitution, has been violated. That's all. That's it. End of issue.
As Herschenson pointed out, it doesn't matter really what any individual justice thinks about the issue, in this case abortion. It only matters what the Constitution says. That's what the Supreme Court is all about. That's what any court really is all about. It adjudicates the law as written.
When Randall Terry said that these judges in the Casey ruling let "us" down--the Christians, the conservatives, the pro-life contingent, whoever--he implied there was an ideology they were meant to represent, a loyalty that they had apparently abandoned. But this kind of thinking is very dangerous. Even though I agree with Randall Terry's general position on the morality of abortion, I disagree with the way he responded to the court.
I'm looking at an underlying current here, actually not underlying anymore, it's an overlying current that is very dangerous. This dangerous pattern is something that both liberals and conservatives are victimized by. To put it simply, when we address issues of the Court, if we start arguing with the Court's decision on a moral basis as opposed to a legal basis, we fall into the same trap.
Let me illustrate this for a minute because I realize some who are listening are going to think that the kind of thing that I'm saying now is completely contrary and opposite to the kind of thing that I've said for the last two and a half years on the air. Certainly, we do reason moralisticly in the marketplace. The question really that I'm addressing is whether it's appropriate to reason that way in the courts. Or does the court have a particular job and is that job limited and is it limited for a purpose? I would argue they have a particular job. It is a very limited job. It is limited for a very good purpose and that limitation protects you and I from tyranny.
Judge Bork recalls the story of two of the greatest figures in our law, Justice Holmes and Judge Learned Hand. As they were departing after having shared lunch together Hand, in a moment of effervescence and enthusiasm, raised his voice after the retreating Holmes in a final salutation, "Do justice, sir, do justice." Holmes stopped the carriage and corrected him. "That is not my job," he said. "It is my job to apply the law."[1]
Let that sink in a moment. It is not the court's job to do justice. It is the courts job to apply law.
But you may ask what if the law is a immoral? My answer is that the courts have no right to strike it down. Once you allow them to do that you've given judges absolute power to decide what is right and wrong, and when that happens you and I become utterly without defense.
Here's what I mean. There is a movie you all should see for a number of reasons, not the least of which has to do with the comments that are made in the film about this issue. But you'll have to go to the "Classics" section of the video store because precious little work has been produced in the past three decades that approaches the moral and intellectual magnitude of this film. The movie is called "A Man for All Seasons." Paul Scofield plays the lead as Sir Thomas Moore, Chancellor of England under Henry the VIII who was executed rather than surrender the leadership of the church to the King. He was a man of tremendous mental acumen, a fine legal mind, a great Christian, a martyr.
This issue of the law that we're discussing came up in the film. When Roper, the somewhat self-righteous suitor of Moore's daughter, asked Moore if he'd even give the devil the benefit of law, he said, "Yes. What would you do, cut a great road through the law to get after the devil."
"Yes," Roper replied, "I'd cut down every law in England to do that."
Sir Thomas Moore responded, "Oh? And when the last law was down and the devil turned round on you where would you hide, Roper, the laws all being flat? This country is planted thick with laws from coast to coast--man's laws, not God's--and if you cut them down...do you really think you could stand upright in the winds that would blow then? Yes, I give the benefit of law, for my own safety's sake."
You see, the danger today is that this principle has largely been abandoned. The law, the Constitution, is less and less something particular that can offer an unchanging standard. Instead revisionist judges see the Constitution as a "living document," changing from generation to generation, and therefore they can ignore the original intent of the framers. In one sense, as Moore put it, the laws are going flat and the winds are beginning to blow. But, I contend, it is only the original intent that can protect us from judicial tyranny.
Now let's talk just a minute about balance of power because this is really what's at issue here. This is the protective element that keeps us from being tyrannized by any segment of the government. It is the elected official's job to pass just laws. It's their job because they have accountability to the electorate. Judges, on the other hand, are only accountable to the law. They are not accountable to the electorate. They are not to be swayed by public opinion. For balance to work, they must be accountable to the law. That's the problem with judges legislating from the bench. There are no controls. Instead of sticking to the Constitution, today's revisionist judges are adjudicating on that which is not law. When they do that, they have both feet planted, as Dr. Francis Schaeffer said, in midair. This does not produce any kind of civil stability.
This introduces the whole problem with the so-called "litmus test." The litmus test refers to a particular ideological profile a justice must have before he can be approved. The expectation is that if a judge has a particular ideology--and therefore passes the test--then his decisions will reflect that ideology.
This is a profound error. The litmus test qualifies potential judges in an inappropriate way.
I have to confess, when I first heard that President Bush claimed he never discussed the abortion issue with any of his nominees I found it hard to believe. But now I understand why that wasn't necessary. Bush was concerned with judicial philosophy--as he should have been--and not with ideology. The teaching that a woman has a fundamental right to an abortion is not in the Constitution; it was the creation of a liberal court legislating personal ideology from the bench. Seating pro-life judges in the court only compounds the problem of bringing ideological battles into the courtroom.
There is another way to resolve this issue. Bush knew that a judge with a conservative view of law --not necessarily a conservative view of the issues--would solve the problem. If you let the Constitution be what it was meant to be and let the Court function the way it was meant to function, Roe would be overturned because judges that are not revisionists but are committed to original intent will not find a right to abortion in the Constitution because it's just not there. Strict constructionists will not read into the Constitution something that's not there. This frightens liberals.
This is precisely why conservatives don't need a litmus test of their judges and liberals demand one. They demand one because they must get an elitist court to accomplish for them what they have not been able to achieve democratically. And that is tyrannous.
It is not the judge's job to do good. Good is an ideological commodity, more often than not, something that means different things to different people. In a relativistic society plagued by competing moral ideologies it would be the kiss of death to give judges the liberty to adjudicate based on their own conscience.
The reason is there is no protection from elitism. Legislation, by its very design, is protected from elitism. Legislators are elected officials. They have accountability to the electorate. Not so the courts. They have become the breeding ground for elitist doctrines to be forced upon the common man. That is frightening.
This is why I am very uncomfortable with letters addressed to the court that argue on a moral basis. What is there that keeps judges from imposing moral and political agendas of their own that are not found in the Constitution just because they got a lot of letters from people saying they should do so? What protects us from moral relativism in the Court? The Constitution is supposed to protect us. The laws are supposed to protect us. Laws that are passed by a Congress which has accountability. The Congress is the place for agendas; not the Court. Judges should not be concerned with morality or with justice in the broader sense. The only justice they're to be concerned with is justice with the law at hand. Goodness, justice and morality in the larger sense are problems of the legislature, not the Court, because we can get at the legislature. We can't get at the Court. We dare not give them that power.
Our appeal to the Court should not be a moral one but a legal one. If you want to write to the Court, write this: Do the law. Stick with the law. Don't legislate from the bench. Don't do what you think is good and right and true. You do the law. That's your job.
The popular vote protects us from tyranny in the legislative and executive branches. But how do we keep the judicial branch from tyrannizing us? The law. If there is no protection in the law itself written by men and women who are elected by the people and sensitive to the will of the people, if the law is so much silly putty bent and molded by the prevailing ideology--liberal or conservative--a "living document" that takes on a different life for each judge that uses it, then there is nothing to keep judges from being tyrants.
And for those of you who think the word tyrant is a bit much, consider this. With one stroke of the pen in 1856, Judge Taney relegated Dred Scott and the rest of his race to the status of chattel property, without rights and without protection from the law. With one stroke of the pen judges 19 years ago swept 27 million unborn children to date into the grave, children without rights and without protection under the law. And with the same stroke of the pen the severely handicapped, the inconvenient, the helpless ones are one by one beginning to fall into that same abyss.
At least that's the way I see it.
[1] Bork, Robert H., The Tempting of America--The Political Seduction of the Law , (New York: Touchstone, 1990), p. 6.
This is a transcript of a commentary from the radio show "Stand to Reason," with Gregory Koukl. It is made available to you at no charge through the faithful giving of those who support Stand to Reason. Reproduction permitted for non-commercial use only. ©1992 Gregory Koukl
Department Of Justice Embraces Obam's Politics Of Tyranny
from The Post & Email:
Department of Justice embraces Obama’s Politics of Tyranny
ARGUES IN KERCHNER VS. OBAMA APPELLEE BRIEF THAT U.S. CONSTITUTION IS NOT THE LAW OF THE LAND
Legal Analysis by John Charlton
From the American Revolution to today, there has been an intimate bond between our armed forces and the very political notion of liberty upon which our independence and Republic are founded.
(March 9, 2010) — Many U.S. Citizens have not awakened to the fact that the U.S.A. is no longer a Constitutional Republic, but a tyrannical state, overthrown from the very day Chief Justice Roberts administered the oath of office to the ineligible candidate, Barack Hussein Obama II.
Those in denial of this bitter political reality need look no further for the evidence of the paradigm shift in the minds of lawyers for the U.S. Department of Justice than the opposition brief filed by Tony West, Assistant Attorney General, Paul J. Fishman, U.S. Attorney, and Mark B. Stern and Eric Fleisig-Green, of the Appellate Staff Division of the DoJ, before the U.S. Third Circuit Court of Appeals in the case of Kerchner et al. vs. Obama & Congress.
The core of the Department of Justice’s argument manifests in the clearest terms that they no longer hold the U.S. Constitution as the Supreme Law of the Land, but rather consider it merely as a theoretical construct, the violation of which harms no one in particular, on pp. 9-10 (Bold Face added):
Plaintiffs suggest that their injuries are analogous to those of states affected by global warming or individuals injured by government displays of religion. See Pl. Br. 39 (citing cases). But none of plaintiffs’ cited cases suggests that a mere interest in the proper application of the law, unaccompanied by more concrete consequences particular to a plaintiff, can serve as the basis of Article III standing. See, e.g., Massachusetts v. EPA, 549 U.S. 497, 517 (2007) (reinforcing that under Article III “a litigant must demonstrate that it has suffered a concrete and particularized injury that is either actual or imminent”); Suhre v. Haywood County, 131 F.3d 1083, 1086 (4th Cir. 1997) (“[A] mere abstract objection to unconstitutional conduct is not sufficient to confer standing.”) (cited at Pl. Br. 39).
As a sworn upholder of the Constitution, Commander Kerchner is no longer a private citizen-per-se, but a Constitutional officer who is bound to uphold the Supreme Law of the Land against all enemies, foreign and domestic.
Considering that Obama holds foreign citizenship and has used his claim to U.S. Citizenship to enter into an office for which he is not eligible by the mere fact of holding British Citizenship from birth (cf. our article, 4 Supreme Court Cases define “natural born citizen” ), he is rightly considered both a foreign and a domestic enemy of the U.S. Constitution.
Considering that Commander Kerchner is duty-bound to defend the Constitution against such an enemy, his case and his appeal are perfectly lawful, right, and just, and the Third Circuit Court of Appeals has a constitutional duty to hear the appeal and overturn the anarchical decision of Judge Jerome B. Simandle, who dismissed the case.
Furthermore, Kerchner, in being forced to accept an ineligible Commander-in-Chief by the action of the Joint Session of Congress on January 8, 2009 when they selected an ineligible candidate to be U.S. President, is harmed directly and most intimately in his adhesion to the very Armed Forces which is duty-bound to uphold that Constitution.
If the violation of the U.S. Constitution’s explicit, facial obligations for holding the office of the U.S. President is a crime which harms no one in particular and which thus presents no basis for a judicial review, then the Republic has been overthrown by the Chicago Mob, and there is no recourse left but ballots and armed counter-revolution.
By claiming such violation is no grounds for a case in Federal Court, the Department of Justice has publicly admitted that it accepts a political theory of usurpation and tyranny whereby a small coterie of individuals, controlling both parties, can overthrow the constitutional order of our Republic and nullify any constitutional restriction as long as they, and they alone, are unanimous in their action.
In other words, the Department of Justice has just confessed and admitted a theory of dictatorship of the few over the democratic rule by the People. And that is the Politics of Tyrants.
The Third Circuit Court would be well-advised to consider that without a U.S. Armed Forces bound to a constitutionally eligible and respectful Commander-in-Chief, once they refuse to uphold the rights of members of the U.S. Military to contest the claims of such an illegitimate commander, they expose themselves to become the next victims of the use of such military force against the other branches of government: for if you render the military oath of no force or value before your court, you have declared that the armed forces are no longer are bound to uphold the U.S. Constitution in any term or obligation which that document declares.
It’s a simple choice then: the Constitution or tyranny; liberty or death!
© 2010, The Post & Email, Inc. All rights reserved internationally, unless otherwise specified. To read more on our copyright restrictions, see our Copyright notice on the subheader of every page, along the left margin.
Department of Justice embraces Obama’s Politics of Tyranny
ARGUES IN KERCHNER VS. OBAMA APPELLEE BRIEF THAT U.S. CONSTITUTION IS NOT THE LAW OF THE LAND
Legal Analysis by John Charlton
From the American Revolution to today, there has been an intimate bond between our armed forces and the very political notion of liberty upon which our independence and Republic are founded.
(March 9, 2010) — Many U.S. Citizens have not awakened to the fact that the U.S.A. is no longer a Constitutional Republic, but a tyrannical state, overthrown from the very day Chief Justice Roberts administered the oath of office to the ineligible candidate, Barack Hussein Obama II.
Those in denial of this bitter political reality need look no further for the evidence of the paradigm shift in the minds of lawyers for the U.S. Department of Justice than the opposition brief filed by Tony West, Assistant Attorney General, Paul J. Fishman, U.S. Attorney, and Mark B. Stern and Eric Fleisig-Green, of the Appellate Staff Division of the DoJ, before the U.S. Third Circuit Court of Appeals in the case of Kerchner et al. vs. Obama & Congress.
The core of the Department of Justice’s argument manifests in the clearest terms that they no longer hold the U.S. Constitution as the Supreme Law of the Land, but rather consider it merely as a theoretical construct, the violation of which harms no one in particular, on pp. 9-10 (Bold Face added):
Plaintiffs suggest that their injuries are analogous to those of states affected by global warming or individuals injured by government displays of religion. See Pl. Br. 39 (citing cases). But none of plaintiffs’ cited cases suggests that a mere interest in the proper application of the law, unaccompanied by more concrete consequences particular to a plaintiff, can serve as the basis of Article III standing. See, e.g., Massachusetts v. EPA, 549 U.S. 497, 517 (2007) (reinforcing that under Article III “a litigant must demonstrate that it has suffered a concrete and particularized injury that is either actual or imminent”); Suhre v. Haywood County, 131 F.3d 1083, 1086 (4th Cir. 1997) (“[A] mere abstract objection to unconstitutional conduct is not sufficient to confer standing.”) (cited at Pl. Br. 39).
As a sworn upholder of the Constitution, Commander Kerchner is no longer a private citizen-per-se, but a Constitutional officer who is bound to uphold the Supreme Law of the Land against all enemies, foreign and domestic.
Considering that Obama holds foreign citizenship and has used his claim to U.S. Citizenship to enter into an office for which he is not eligible by the mere fact of holding British Citizenship from birth (cf. our article, 4 Supreme Court Cases define “natural born citizen” ), he is rightly considered both a foreign and a domestic enemy of the U.S. Constitution.
Considering that Commander Kerchner is duty-bound to defend the Constitution against such an enemy, his case and his appeal are perfectly lawful, right, and just, and the Third Circuit Court of Appeals has a constitutional duty to hear the appeal and overturn the anarchical decision of Judge Jerome B. Simandle, who dismissed the case.
Furthermore, Kerchner, in being forced to accept an ineligible Commander-in-Chief by the action of the Joint Session of Congress on January 8, 2009 when they selected an ineligible candidate to be U.S. President, is harmed directly and most intimately in his adhesion to the very Armed Forces which is duty-bound to uphold that Constitution.
If the violation of the U.S. Constitution’s explicit, facial obligations for holding the office of the U.S. President is a crime which harms no one in particular and which thus presents no basis for a judicial review, then the Republic has been overthrown by the Chicago Mob, and there is no recourse left but ballots and armed counter-revolution.
By claiming such violation is no grounds for a case in Federal Court, the Department of Justice has publicly admitted that it accepts a political theory of usurpation and tyranny whereby a small coterie of individuals, controlling both parties, can overthrow the constitutional order of our Republic and nullify any constitutional restriction as long as they, and they alone, are unanimous in their action.
In other words, the Department of Justice has just confessed and admitted a theory of dictatorship of the few over the democratic rule by the People. And that is the Politics of Tyrants.
The Third Circuit Court would be well-advised to consider that without a U.S. Armed Forces bound to a constitutionally eligible and respectful Commander-in-Chief, once they refuse to uphold the rights of members of the U.S. Military to contest the claims of such an illegitimate commander, they expose themselves to become the next victims of the use of such military force against the other branches of government: for if you render the military oath of no force or value before your court, you have declared that the armed forces are no longer are bound to uphold the U.S. Constitution in any term or obligation which that document declares.
It’s a simple choice then: the Constitution or tyranny; liberty or death!
© 2010, The Post & Email, Inc. All rights reserved internationally, unless otherwise specified. To read more on our copyright restrictions, see our Copyright notice on the subheader of every page, along the left margin.
The Fiction And Tyranny Of Administrative Law
From Friesian.org:
The Fiction and Tyranny
of "Administrative Law"
--------------------------------------------------------------------------------
"If the law supposes that," said Mr. Bumble, squeezing his hat emphatically in both hands, "the law is a ass -- a idiot."
Charles Dickens, Oliver Twist
On top of that came the suffering caused by trivial regulations and augmented by mutual surveillance, hedging men's activities with hidden dangers. Lift a hand and catch it in a net; move a foot and spring a trap. That is why the people of Cao's own provinces, Yanzhou and Yuzhou, have lost all spirit, and why the groans of wronged men fill the capital. Search through the annals for renegade ministers who surpass Cao Cao [Ts'ao Ts'ao] for blatant avarice and cruel malice!
The Romance of the Three Kingdoms [, Three Kingdoms, attributed to Luo Guanzhong, Foreign Language Press, Beijing, 1995, 2007, Volume I, pp.372-373]
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The conservative columnist Joseph Sobran has a lecture on audio tape called "How Tyranny Came to America." This seems like a shocking and absurd claim. How could anyone believe that "tyranny" exists in America? Sobran must be some kind of extremist nut.
Well, Sobran is a bit of an extremist, but to evaluate his claim in this case, even apart from his arguments, one thing we might do is look at definitions of tyranny as formulated by the Founders of the Nation. Thus, Thomas Jefferson said, in his Notes on Virginia [1784], warning about a legislature assuming all the powers of government:
All the powers of government, legislative, executive, and judiciary, result to the legislative body. The concentrating these in the same hands is precisely the definition of despotic government. It will be no alleviation that these powers will be exercised by a plurality of hands, and not by a single one. One hundred and seventy-three despots would surely be as oppressive as one....As little will it avail us that they are chosen by ourselves. An elective despotism was not the government we fought for..."
This is significant, not only defining "despotic government" as that which combines the three powers into the same hands, but in noting that such a despotic government can exist even if it is democratic and elected. Some people might think that an "elective despotism" would be contradiction in terms -- since if those in office are elected, then "we are the government." No, all it means is that every two years, or four years, or six years those in office simply have to look preferable to the other guy. Otherwise, they are on their own.
Similar to Jefferson's views are those of James Madison, who quotes Jefferson's own words above and continues to say, in the Federalist No. 47:
The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.
Jefferson and Madison thus agree that combining the three powers of government is the last thing that we would want to see happen, even in elected hands. It will always produce despotism and tyranny. We might think, however, that Jefferson and Madison might represent no more than some party sentiment. They brought to an end Federalist rule, so perhaps the true spirit of the country was lost after Washington and Adams. This would be a mistake. In his own Farewell Address in 1796, George Washington said [my emphasis]:
It is important, likewise, that the habits of thinking in a free Country should inspire caution in those entrusted with its administration, to confine themselves within their respective Constitutional spheres; avoiding in the exercise of the Powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create whatever the form of government, a real despotism. A just estimate of the love of power, and proneness to abuse it, which predominates in the human heart is sufficient to satisfy us of the truth of this proposition.
Despite all the cautions of the Founders, this consolidation is precisely what has happened, and not even in elected hands. It is now quite common, embodied especially in the form of administrative agencies, particularly those of the federal government, like the IRS, the FCC, the FDA, OSHA, the USDA, the EEOC, the EPA, the Federal Trade Commission (FTC), and countless others.
The consolidation of powers in these agencies, and their breach of Constitutional protections, may be examined in turn in relation to each power:
Executive Powers:
These agencies have executive powers, because they are part of the Executive Branch of government. Often now they not only have their own armed agents but even para-military SWAT teams. This is disturbing enough, since it is not clear why the Postal Service, the Forest Service, etc. all need to have their own SWAT teams. More important, however, are the extra-constitutional executive powers that have been given to administrative agencies. The Supreme Court has ruled (United States v. Morton Salt, 1950) that such agencies have what it actually calls "Powers of Inquisition," which means that the agencies can "investigate merely on suspicion that a law is being violated, or even just because they want assurance that it is not." Consequently, they may initiate investigations and demand records for no reason at all. This violates the Fourth Amendment in the most painfully obvious way:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to searched, and the persons or things to be seized.
The current grotesque breaches of this protection are possible through the sophistry that administrative agencies are not engaged in criminal investigations, but in "administrative actions." Of course, the Fourth Amendment does not specify that this protection only applies to criminal actions, so that avenue is really not available to honest argument. Otherwise, the thought seems to be, whether stated openly in the law or not, that no one has a right to engage in certain actions, mainly business activities, without government, especially federal, licensing permission, and that this permission may then be granted under whatever conditions the government decides to grant it. If business licenses are granted under the condition that searches may be conducted in any way and at any time, then that's that. Again, such dishonest arguments obviously void the Fourth Amendment altogether and are only made in order to circumvent the protections embodied in that Amendment and in the rest of the Constitution and the Bill of Rights. Only tyrants, of course, would want to accomplish that task and assume such "Powers of Inquisition."
I am now informed that the investigative powers of administrative agencies are justified on the theory that they have the same powers as "common law grand juries," with the additional feature of Court decisions that the Fourth Amendment does not apply to subpoenas of Grand Juries. This is a very remarkable theory. The purpose of a Grand Jury, consisting of private citizens, is to impose a check and a balance on the ability of prosecutors to conduct baseless or malicious prosecutions. The idea that the powers of such a body could simply be given to an administrative agency is then the essence of the violation of the separation of powers and the system of checks and balances. Furthermore, even if it is proper that the subpoena power of Grand Juries is not limited by the Fourth Amendment, there are large practical limitations on that power that disappear when it is transfered to an executive agency. Thus, a Grand Jury is usually dependent for what it knows and for what it is expected to do on the prosecutors who present it with evidence. Police and prosecutors investigate crime under the limitations of the Fourth Amendment and of probable cause. Thus, any preliminary evidence presented to a Grand Jury already has passed a certain theshold of probable cause, upon the basis of which subpoenas are then issued. Grand Juries usually do not have their own independent resources of investigation, and prosecutors typically don't like Grand Juries to exercise their powers independently. I personally know of Grand Juries that have been dismissed and of individual jurors who have been threatened when they began to investigate matters (e.g. official misbehavior) that prosecutors did not want investigated. It is thus always the practice of prosecutors to use Grand Juries for their own purposes and to try and restrict the Constitutional role of Grand Juries with practical restrictions on what they know and what they think they can do. Grand Juries thus will be lied to just like ordinary (petty) juries. The powers of a Grand Jury in the hands of an executive or administrative authority will have none of these practical (indeed, adversarial) limitations and can then be exercised without the slightest practical or legal limitation of probable cause.
I am also informed that according to the Supreme Court the Fourth Amendment does apply to inspections, searches, and seizures by administrative agencies, but with not as much protection as to private homes, on the theory of the "greater expectation of privacy in one's home." First of all, this is typical of jurisprudence that erodes the protections of private property when applied to businesses rather than residences. This in itself is specious, and allows for voiding the Fourth Amendment, the Fifth Amendment "takings" clause, and other Constitutional protections. Such a holding is also disingenuous. A drug company, for instance, is not allowed to manufacture even an approved drug until the FDA inspects the factory. Since there aren't enough inspectors, and there is consequently a large backlog of facilities to be inspected, producive capital sits idle for long and expensive periods, increasing the cost of manufacture and driving up drug prices. Such companies thus in effect give up their Fourth Amendment rights when they agree to the procedures by which the FDA approves the sale of drugs (those powers justified under the power of the Federal Government to "regulate interstate commerce"). One effect of this kind of thing even turned up on the television series Seinfeld, when Elaine discovered that contraceptive sponges were no longer being manufactured. As it happened, the company making the sponges needed to move its factory. The FDA ruled, not only that the new factory would have to be inspected, but that the device itself would have to be recertified for safety and effectiveness. Since this could only be done at vast expense, for a period that no income could be earned from it, the drug company simply discontinued its product. Such authority renders moot even the pretext of exercising the powers of Grand Juries, let alone any Fourth Amendment restrictions whatsoever.
Legislative Powers:
The same agencies also have legislative power because they have been given the function of writing regulations that have the force of law. These regulations need only be published in the Federal Register to become effective (after some "procedural requirements" that, among other things, invite public comment -- which usually ends up largely meaning testimony from interest groups that stand to benefit from the regulation). Thus, the entire Constitutional process of passing laws -- the consent of both houses of Congress and the President (unless his veto is overridden) -- is bypassed. Instead, a bureaucrat writes a regulation, publishes it, and that's that. The next thing, the agency SWAT team is breaking in on some citizen or business.
Although allowed by the Supreme Court in United States v. Grimand (1911) -- another disastrous misstep from the so-called "Progressive Era" -- this delegation of legislative power is unconstitutional. Congress is given no power in the Constitution to delegate its functions; and the Constitution explicitly says, Article I, Section 1, "All legislative Power herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representative" -- not, "a Senate and a House of Representatives and whoever else they want to pass the buck to." The illegitimacy of this kind of device was already recognized by John Locke in his great Second Treatise of Civil Government [1690]:
§141: Fourthly, The Legislative cannot transfer the Power of Making Laws to any other hands. For it being but a delegated Power from the People, they who have it, cannot pass it over to others. The People alone can appoint the Form of the Commonwealth, which is by Constituting the Legislative, and appointing in whose hands that shall be. And when the People have said, We will submit to rules, and be govern'd by Laws made by such Men, and in such Forms, no Body can say other Men shall make Laws for them; nor can the people be bound by any Laws but such as are Enacted by those, whom they have Chosen, and Authorised to make Laws for them. The power of the Legislative being derived from the People by a positive voluntary Grant and Institution, can be no other, than what that positive Grant conveyed, which being only to make Laws, and not to make Legislators, the Legislative can have no power to transfer their Authority of making Laws, and place it in other hands.
The benefit for legislators of passing these powers on to others is that they can avoid the blame for the oppressive acts of the "regulators" and earn favor by individually rescuing constituents who appeal to them for help. The constituents then do not blame the legislators for having given the regulators improper powers in the first place.
Another benefit for some political factions is that they can capture ideological control of an administrative agency even when they have no hope of pursuing their program through legislation. A recent case in point was when President Clinton agreed with the Food and Drug Administration to classify the nicotine in tobacco as a drug, which gave the agency the power to regulate it in any way it sees fit. This essentially dictatorial act is nevertheless not likely to be reversed by Congress, since the Democratic Party opposition can claim that any attempt to do so, despite its despotic and extra-constitutional character, would only work in the interest of the tobacco companies to addict and kill Americans. It has also been noted that if tobacco actually is to be treated as a drug, the FDA's actual legislative mandate is to only allow drugs that have been proven "safe and effective." Pursuing the logic of that mandate means that the FDA will have to ban tobacco. This is certainly the actual goal of the ideological group (paternalistic statists, socialists, and old fashioned moralistic Prohibitionists) that has captured the FDA and whose aims have been adopted by the Democratic Party for political purposes. Once the goal is accomplished, then alcohol and caffeine, which are also "drugs" in pretty much the same sense as nicotine, will become, pursuing the same paternalistic logic that made alcohol Prohibition one of the major projects of the "Progressive" Era, the next targets.
Judicial Powers:
These grotesque abuses of representative government pale beside the next one: The very same administrative agencies that write and enforce their own regulations have also often been given the power of judging them in their own courts and through their own "administrative law" judges. There is a spectrum of misrule in this case, since some adminstrative law judges are employed by their own agencies, while others belong to relatively independent organizations. Thus the "Occupational Safety and Health Review Commission" is not part of the Occupational Safety and Health Administration (OSHA), nor is the United States Tax Court part of the IRS or the Department of Justice. However, these "quasi-judicial" organizations are not part of the Independent Judiciary and do not contain many of the Constitutional protections, like trial by jury, that belong to the proper Court system. The precedent for them, indeed, is the system of Military Justice, which, unlike the modern administrative courts, actually existed when the Constitutional was written. The harsh truth, then, is that the precedent for even the relatively independent "quasi-judicial" organizations is the Court-Martial. That this development should have been allowed means that elements of martial law are now part of the ordinary operations of the United States Government. At the same time, a judicial function like imposing fines is usually retained by the executive agencies themselves, which then assess such punishments in summary fashion, without even the pretext of a judicial procedure. The principal function of the "quasi-judicial" organizations is appellate.
The existence of these monstrous vehicles essentially spells the end of the rule of law and democratic government. "Administrative law" judges, of whatever stripe, do not belong to the independent judiciary, and frequently (as at the Federal Trade Commission, the FTC) are creatures of their executive agencies. They know who pays the piper. Agencies can simply ignore the findings of their own administrative law courts. Thus, in 1988 administrative law judge Francis Young ruled that, "Marijuana has been accepted as capable of relieving distress of great numbers of very ill people," and recommended "the Administrator transfer marijuana from Schedule I to Schedule II to make it available as a legal medicine." However, DEA Administrator John Lawn rejected Young's ruling, and in 1994 the Court of Appeals (a real court) allowed his decision to stand. To the real courts, consequently, administrative law judges can simply be overruled by their own executive agencies. This affirms that such administrative law courts are not part of any independent judiciary.
Besides these transparent formulae for corruption and injustice, the fiction of "administrative law" also conveniently bypasses all of the protections of the Bill of Rights. Defendants before an administrative law judge are not protected by due process, the presumption of innocence, trial by jury, or any other barrier built around criminal or civil law; for "administrative law," betwixt and between the judiciary and the executive, is in effect neither criminal nor civil law. Unmentioned in the Constitution, "administrative law" is without essential Constitutional limitations or protections. When in doubt about whether one is in an administrative law court, there is one key stigma: There will be no jury box.
Such "administrative" procedures, to be sure, cannot imprison any American, but the agencies are free to levy fines, without evidence, trial, or defense, seize property, and then bring criminal charges against citizens for failure to obey their often unknown, obscure, and self-contradictory regulations. If the agencies are content just to harass and impoverish a citizen, we have been told by the Supreme Court that the citizen cannot have recourse to a real court, in the real judiciary, to appeal the tyranny of the agency until all "administrative remedies" have been exhausted. Since the agency itself defines what the "administrative remedies" are, it can take decades before such "remedies" are exhausted. Citizens are thus essentially at the mercy of the agencies, unless a Congressman or the President personally intervenes.
Thus the "shock jock" radio personality, Howard Stern, who did his best to offend people without actually using the "seven bad words," which had hitherto been the explicit criterion of obscenity on radio and television, began to be summarily fined, hundreds of thousands of dollars an offense, for "indecency," which was a new category invented out of whole cloth by the Federal Communications Commission specifically so that they could penalize Stern and his imitators. The new, unconstitutionally vague, category of "indecency" then became a political football between Congress and the courts. Meanwhile, all Stern said he ever asked for was his "day in court." It never happened. The FCC didn't need to go to court to levy its fines, and when it began to harass stations over their broadcast licenses, the company that syndicated Stern's show decided just to pay up. The federal government thus passes over into the devices of an extortion racket.
And so, at least in one very precise sense, tyranny came to America. Locke, Washington, Jefferson, and Madison would be appalled -- and that not so much at the "insolence of office" and the grasping arrogance of those given power, but at the thoughtlessness, passivity, and acquiescence of Americans in allowing this to come to pass. Instead, Americans usually don't even notice how vicious it is in both principle and practice: They are seduced by the idea that power is good when it is used for what they like, but then it is too late when that power is turned against them for things they don't like.
Since the IRS is the most powerful, oppressive, irresponsible, feared, and hated of federal agencies, but nevertheless tolerated and excused by the "need" for tax money to pay all the "benefits" to which citizens think they are entitled (see Rent-Seeking, Public Choice, and The Prisoner's Dilemma), it is worth noting the prophecy of Richard E. Byrd, Speaker of the Virginia House of Delegates, arguing against the ratification of the 16th Amendment (which allowed the Federal Government to Tax incomes) on March 3, 1910:
A hand from Washington will be stretched out and placed upon every man's business; the eye of the Federal inspector will be in every man's counting house. The law will of necessity have inquisitorial features, it will provide penalties. It will create a complicated machinery. Under it businessmen will be hauled into courts distant from their homes. Heavy fines imposed by distant and unfamiliar tribunals will constantly menace the taxpayer. An army of Federal inspectors, spies and detectives will descend upon the state. They will compel men of business to show their books and disclose the secrets of their affairs. They will dictate forms of bookkeeping. They will require statements and affidavits..."
All this even though Byrd did not also anticipate either that private citizens would feel these same effects or that the fiction of "administrative law" and "administrative law courts" would be concocted; for a great reason why the IRS is feared and hated is not just its "Powers of Inquisition," but the vast size and incomprehensibility of the Tax Code. James Madison described the effects of that quite well in the Federalist No. 62:
It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?
....Every new regulation concerning commerce or revenue, or in any manner effecting the value of the different species of property, presents a new harvest to those who watch the change, and can trace its consequences; a harvest, reared not by themselves, but by the toils and cares of the great body of their fellow-citizens....
....What prudent merchant will hazard his fortunes in any new branch of commerce when he knows not but that his plans may be rendered unlawful before they can be executed? What farmer or manufacturer will lay himself out for the encouragement given to any particular cultivation or establishment, when he can have no assurance that his preparatory labors and advances will not render him a victim to an inconstant government?...
....No government, any more than an individual, will long be respected without being truly respectable; nor be truly respectable without possessing a certain portion of order and stability.
Again, Madison did not anticipate that the "voluminous" and "incoherent" regulations would be written, not even by elected officials, but by unaccountable bureaucrats -- bureaucrats who cannot avoid frequently giving incorrect or contradictory answers to taxpayers calling the IRS with questions. The result, indeed, is that the federal government, faithless and treacherous to its Constitutional charge, is no longer "truly respectable." Not just "order and stability" have been lost: Tyranny has come to America.
In light of this, the following legal principles should be adopted:
No actions by government agents or agencies are free of the restrictions imposed by the Fourth Amendment or other articles of the Constitution and the Bill of Rights.
There are no legal actions apart from the criminal and the civil, with the full Constitutional protections established for each.
There can be no courts or judicial proceedings apart from duly constituted components of the Independent Judiciary, wherein the protections of Trial by Jury cannot be suspended or restricted.
Legislative bodies cannot delegate the power of making laws, or confer upon anyone the power of making any rule or regulation that has the force of law.
The only Constitutional exceptions to these rules concern the military, military discipline, military justice, and (in times of war, invasion, or rebellion) martial law.
These principles will not prevent any further bad laws or tyrannical practices, but they will defuse the structural tyranny that has been created through "administrative law," its "inquisitors," its regulatory extra-constitutional legislators, and its fraudulent "courts." Further restrictions would concern the use of civil law for government actions, treated elsewhere.
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Political Economy
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Copyright (c) 1997, 2000, 2002, 2004, 2006, 2007, 2008 Kelley L. Ross, Ph.D. All Rights Reserved
The Fiction and Tyranny
of "Administrative Law"
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"If the law supposes that," said Mr. Bumble, squeezing his hat emphatically in both hands, "the law is a ass -- a idiot."
Charles Dickens, Oliver Twist
On top of that came the suffering caused by trivial regulations and augmented by mutual surveillance, hedging men's activities with hidden dangers. Lift a hand and catch it in a net; move a foot and spring a trap. That is why the people of Cao's own provinces, Yanzhou and Yuzhou, have lost all spirit, and why the groans of wronged men fill the capital. Search through the annals for renegade ministers who surpass Cao Cao [Ts'ao Ts'ao] for blatant avarice and cruel malice!
The Romance of the Three Kingdoms [, Three Kingdoms, attributed to Luo Guanzhong, Foreign Language Press, Beijing, 1995, 2007, Volume I, pp.372-373]
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The conservative columnist Joseph Sobran has a lecture on audio tape called "How Tyranny Came to America." This seems like a shocking and absurd claim. How could anyone believe that "tyranny" exists in America? Sobran must be some kind of extremist nut.
Well, Sobran is a bit of an extremist, but to evaluate his claim in this case, even apart from his arguments, one thing we might do is look at definitions of tyranny as formulated by the Founders of the Nation. Thus, Thomas Jefferson said, in his Notes on Virginia [1784], warning about a legislature assuming all the powers of government:
All the powers of government, legislative, executive, and judiciary, result to the legislative body. The concentrating these in the same hands is precisely the definition of despotic government. It will be no alleviation that these powers will be exercised by a plurality of hands, and not by a single one. One hundred and seventy-three despots would surely be as oppressive as one....As little will it avail us that they are chosen by ourselves. An elective despotism was not the government we fought for..."
This is significant, not only defining "despotic government" as that which combines the three powers into the same hands, but in noting that such a despotic government can exist even if it is democratic and elected. Some people might think that an "elective despotism" would be contradiction in terms -- since if those in office are elected, then "we are the government." No, all it means is that every two years, or four years, or six years those in office simply have to look preferable to the other guy. Otherwise, they are on their own.
Similar to Jefferson's views are those of James Madison, who quotes Jefferson's own words above and continues to say, in the Federalist No. 47:
The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.
Jefferson and Madison thus agree that combining the three powers of government is the last thing that we would want to see happen, even in elected hands. It will always produce despotism and tyranny. We might think, however, that Jefferson and Madison might represent no more than some party sentiment. They brought to an end Federalist rule, so perhaps the true spirit of the country was lost after Washington and Adams. This would be a mistake. In his own Farewell Address in 1796, George Washington said [my emphasis]:
It is important, likewise, that the habits of thinking in a free Country should inspire caution in those entrusted with its administration, to confine themselves within their respective Constitutional spheres; avoiding in the exercise of the Powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create whatever the form of government, a real despotism. A just estimate of the love of power, and proneness to abuse it, which predominates in the human heart is sufficient to satisfy us of the truth of this proposition.
Despite all the cautions of the Founders, this consolidation is precisely what has happened, and not even in elected hands. It is now quite common, embodied especially in the form of administrative agencies, particularly those of the federal government, like the IRS, the FCC, the FDA, OSHA, the USDA, the EEOC, the EPA, the Federal Trade Commission (FTC), and countless others.
The consolidation of powers in these agencies, and their breach of Constitutional protections, may be examined in turn in relation to each power:
Executive Powers:
These agencies have executive powers, because they are part of the Executive Branch of government. Often now they not only have their own armed agents but even para-military SWAT teams. This is disturbing enough, since it is not clear why the Postal Service, the Forest Service, etc. all need to have their own SWAT teams. More important, however, are the extra-constitutional executive powers that have been given to administrative agencies. The Supreme Court has ruled (United States v. Morton Salt, 1950) that such agencies have what it actually calls "Powers of Inquisition," which means that the agencies can "investigate merely on suspicion that a law is being violated, or even just because they want assurance that it is not." Consequently, they may initiate investigations and demand records for no reason at all. This violates the Fourth Amendment in the most painfully obvious way:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to searched, and the persons or things to be seized.
The current grotesque breaches of this protection are possible through the sophistry that administrative agencies are not engaged in criminal investigations, but in "administrative actions." Of course, the Fourth Amendment does not specify that this protection only applies to criminal actions, so that avenue is really not available to honest argument. Otherwise, the thought seems to be, whether stated openly in the law or not, that no one has a right to engage in certain actions, mainly business activities, without government, especially federal, licensing permission, and that this permission may then be granted under whatever conditions the government decides to grant it. If business licenses are granted under the condition that searches may be conducted in any way and at any time, then that's that. Again, such dishonest arguments obviously void the Fourth Amendment altogether and are only made in order to circumvent the protections embodied in that Amendment and in the rest of the Constitution and the Bill of Rights. Only tyrants, of course, would want to accomplish that task and assume such "Powers of Inquisition."
I am now informed that the investigative powers of administrative agencies are justified on the theory that they have the same powers as "common law grand juries," with the additional feature of Court decisions that the Fourth Amendment does not apply to subpoenas of Grand Juries. This is a very remarkable theory. The purpose of a Grand Jury, consisting of private citizens, is to impose a check and a balance on the ability of prosecutors to conduct baseless or malicious prosecutions. The idea that the powers of such a body could simply be given to an administrative agency is then the essence of the violation of the separation of powers and the system of checks and balances. Furthermore, even if it is proper that the subpoena power of Grand Juries is not limited by the Fourth Amendment, there are large practical limitations on that power that disappear when it is transfered to an executive agency. Thus, a Grand Jury is usually dependent for what it knows and for what it is expected to do on the prosecutors who present it with evidence. Police and prosecutors investigate crime under the limitations of the Fourth Amendment and of probable cause. Thus, any preliminary evidence presented to a Grand Jury already has passed a certain theshold of probable cause, upon the basis of which subpoenas are then issued. Grand Juries usually do not have their own independent resources of investigation, and prosecutors typically don't like Grand Juries to exercise their powers independently. I personally know of Grand Juries that have been dismissed and of individual jurors who have been threatened when they began to investigate matters (e.g. official misbehavior) that prosecutors did not want investigated. It is thus always the practice of prosecutors to use Grand Juries for their own purposes and to try and restrict the Constitutional role of Grand Juries with practical restrictions on what they know and what they think they can do. Grand Juries thus will be lied to just like ordinary (petty) juries. The powers of a Grand Jury in the hands of an executive or administrative authority will have none of these practical (indeed, adversarial) limitations and can then be exercised without the slightest practical or legal limitation of probable cause.
I am also informed that according to the Supreme Court the Fourth Amendment does apply to inspections, searches, and seizures by administrative agencies, but with not as much protection as to private homes, on the theory of the "greater expectation of privacy in one's home." First of all, this is typical of jurisprudence that erodes the protections of private property when applied to businesses rather than residences. This in itself is specious, and allows for voiding the Fourth Amendment, the Fifth Amendment "takings" clause, and other Constitutional protections. Such a holding is also disingenuous. A drug company, for instance, is not allowed to manufacture even an approved drug until the FDA inspects the factory. Since there aren't enough inspectors, and there is consequently a large backlog of facilities to be inspected, producive capital sits idle for long and expensive periods, increasing the cost of manufacture and driving up drug prices. Such companies thus in effect give up their Fourth Amendment rights when they agree to the procedures by which the FDA approves the sale of drugs (those powers justified under the power of the Federal Government to "regulate interstate commerce"). One effect of this kind of thing even turned up on the television series Seinfeld, when Elaine discovered that contraceptive sponges were no longer being manufactured. As it happened, the company making the sponges needed to move its factory. The FDA ruled, not only that the new factory would have to be inspected, but that the device itself would have to be recertified for safety and effectiveness. Since this could only be done at vast expense, for a period that no income could be earned from it, the drug company simply discontinued its product. Such authority renders moot even the pretext of exercising the powers of Grand Juries, let alone any Fourth Amendment restrictions whatsoever.
Legislative Powers:
The same agencies also have legislative power because they have been given the function of writing regulations that have the force of law. These regulations need only be published in the Federal Register to become effective (after some "procedural requirements" that, among other things, invite public comment -- which usually ends up largely meaning testimony from interest groups that stand to benefit from the regulation). Thus, the entire Constitutional process of passing laws -- the consent of both houses of Congress and the President (unless his veto is overridden) -- is bypassed. Instead, a bureaucrat writes a regulation, publishes it, and that's that. The next thing, the agency SWAT team is breaking in on some citizen or business.
Although allowed by the Supreme Court in United States v. Grimand (1911) -- another disastrous misstep from the so-called "Progressive Era" -- this delegation of legislative power is unconstitutional. Congress is given no power in the Constitution to delegate its functions; and the Constitution explicitly says, Article I, Section 1, "All legislative Power herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representative" -- not, "a Senate and a House of Representatives and whoever else they want to pass the buck to." The illegitimacy of this kind of device was already recognized by John Locke in his great Second Treatise of Civil Government [1690]:
§141: Fourthly, The Legislative cannot transfer the Power of Making Laws to any other hands. For it being but a delegated Power from the People, they who have it, cannot pass it over to others. The People alone can appoint the Form of the Commonwealth, which is by Constituting the Legislative, and appointing in whose hands that shall be. And when the People have said, We will submit to rules, and be govern'd by Laws made by such Men, and in such Forms, no Body can say other Men shall make Laws for them; nor can the people be bound by any Laws but such as are Enacted by those, whom they have Chosen, and Authorised to make Laws for them. The power of the Legislative being derived from the People by a positive voluntary Grant and Institution, can be no other, than what that positive Grant conveyed, which being only to make Laws, and not to make Legislators, the Legislative can have no power to transfer their Authority of making Laws, and place it in other hands.
The benefit for legislators of passing these powers on to others is that they can avoid the blame for the oppressive acts of the "regulators" and earn favor by individually rescuing constituents who appeal to them for help. The constituents then do not blame the legislators for having given the regulators improper powers in the first place.
Another benefit for some political factions is that they can capture ideological control of an administrative agency even when they have no hope of pursuing their program through legislation. A recent case in point was when President Clinton agreed with the Food and Drug Administration to classify the nicotine in tobacco as a drug, which gave the agency the power to regulate it in any way it sees fit. This essentially dictatorial act is nevertheless not likely to be reversed by Congress, since the Democratic Party opposition can claim that any attempt to do so, despite its despotic and extra-constitutional character, would only work in the interest of the tobacco companies to addict and kill Americans. It has also been noted that if tobacco actually is to be treated as a drug, the FDA's actual legislative mandate is to only allow drugs that have been proven "safe and effective." Pursuing the logic of that mandate means that the FDA will have to ban tobacco. This is certainly the actual goal of the ideological group (paternalistic statists, socialists, and old fashioned moralistic Prohibitionists) that has captured the FDA and whose aims have been adopted by the Democratic Party for political purposes. Once the goal is accomplished, then alcohol and caffeine, which are also "drugs" in pretty much the same sense as nicotine, will become, pursuing the same paternalistic logic that made alcohol Prohibition one of the major projects of the "Progressive" Era, the next targets.
Judicial Powers:
These grotesque abuses of representative government pale beside the next one: The very same administrative agencies that write and enforce their own regulations have also often been given the power of judging them in their own courts and through their own "administrative law" judges. There is a spectrum of misrule in this case, since some adminstrative law judges are employed by their own agencies, while others belong to relatively independent organizations. Thus the "Occupational Safety and Health Review Commission" is not part of the Occupational Safety and Health Administration (OSHA), nor is the United States Tax Court part of the IRS or the Department of Justice. However, these "quasi-judicial" organizations are not part of the Independent Judiciary and do not contain many of the Constitutional protections, like trial by jury, that belong to the proper Court system. The precedent for them, indeed, is the system of Military Justice, which, unlike the modern administrative courts, actually existed when the Constitutional was written. The harsh truth, then, is that the precedent for even the relatively independent "quasi-judicial" organizations is the Court-Martial. That this development should have been allowed means that elements of martial law are now part of the ordinary operations of the United States Government. At the same time, a judicial function like imposing fines is usually retained by the executive agencies themselves, which then assess such punishments in summary fashion, without even the pretext of a judicial procedure. The principal function of the "quasi-judicial" organizations is appellate.
The existence of these monstrous vehicles essentially spells the end of the rule of law and democratic government. "Administrative law" judges, of whatever stripe, do not belong to the independent judiciary, and frequently (as at the Federal Trade Commission, the FTC) are creatures of their executive agencies. They know who pays the piper. Agencies can simply ignore the findings of their own administrative law courts. Thus, in 1988 administrative law judge Francis Young ruled that, "Marijuana has been accepted as capable of relieving distress of great numbers of very ill people," and recommended "the Administrator transfer marijuana from Schedule I to Schedule II to make it available as a legal medicine." However, DEA Administrator John Lawn rejected Young's ruling, and in 1994 the Court of Appeals (a real court) allowed his decision to stand. To the real courts, consequently, administrative law judges can simply be overruled by their own executive agencies. This affirms that such administrative law courts are not part of any independent judiciary.
Besides these transparent formulae for corruption and injustice, the fiction of "administrative law" also conveniently bypasses all of the protections of the Bill of Rights. Defendants before an administrative law judge are not protected by due process, the presumption of innocence, trial by jury, or any other barrier built around criminal or civil law; for "administrative law," betwixt and between the judiciary and the executive, is in effect neither criminal nor civil law. Unmentioned in the Constitution, "administrative law" is without essential Constitutional limitations or protections. When in doubt about whether one is in an administrative law court, there is one key stigma: There will be no jury box.
Such "administrative" procedures, to be sure, cannot imprison any American, but the agencies are free to levy fines, without evidence, trial, or defense, seize property, and then bring criminal charges against citizens for failure to obey their often unknown, obscure, and self-contradictory regulations. If the agencies are content just to harass and impoverish a citizen, we have been told by the Supreme Court that the citizen cannot have recourse to a real court, in the real judiciary, to appeal the tyranny of the agency until all "administrative remedies" have been exhausted. Since the agency itself defines what the "administrative remedies" are, it can take decades before such "remedies" are exhausted. Citizens are thus essentially at the mercy of the agencies, unless a Congressman or the President personally intervenes.
Thus the "shock jock" radio personality, Howard Stern, who did his best to offend people without actually using the "seven bad words," which had hitherto been the explicit criterion of obscenity on radio and television, began to be summarily fined, hundreds of thousands of dollars an offense, for "indecency," which was a new category invented out of whole cloth by the Federal Communications Commission specifically so that they could penalize Stern and his imitators. The new, unconstitutionally vague, category of "indecency" then became a political football between Congress and the courts. Meanwhile, all Stern said he ever asked for was his "day in court." It never happened. The FCC didn't need to go to court to levy its fines, and when it began to harass stations over their broadcast licenses, the company that syndicated Stern's show decided just to pay up. The federal government thus passes over into the devices of an extortion racket.
And so, at least in one very precise sense, tyranny came to America. Locke, Washington, Jefferson, and Madison would be appalled -- and that not so much at the "insolence of office" and the grasping arrogance of those given power, but at the thoughtlessness, passivity, and acquiescence of Americans in allowing this to come to pass. Instead, Americans usually don't even notice how vicious it is in both principle and practice: They are seduced by the idea that power is good when it is used for what they like, but then it is too late when that power is turned against them for things they don't like.
Since the IRS is the most powerful, oppressive, irresponsible, feared, and hated of federal agencies, but nevertheless tolerated and excused by the "need" for tax money to pay all the "benefits" to which citizens think they are entitled (see Rent-Seeking, Public Choice, and The Prisoner's Dilemma), it is worth noting the prophecy of Richard E. Byrd, Speaker of the Virginia House of Delegates, arguing against the ratification of the 16th Amendment (which allowed the Federal Government to Tax incomes) on March 3, 1910:
A hand from Washington will be stretched out and placed upon every man's business; the eye of the Federal inspector will be in every man's counting house. The law will of necessity have inquisitorial features, it will provide penalties. It will create a complicated machinery. Under it businessmen will be hauled into courts distant from their homes. Heavy fines imposed by distant and unfamiliar tribunals will constantly menace the taxpayer. An army of Federal inspectors, spies and detectives will descend upon the state. They will compel men of business to show their books and disclose the secrets of their affairs. They will dictate forms of bookkeeping. They will require statements and affidavits..."
All this even though Byrd did not also anticipate either that private citizens would feel these same effects or that the fiction of "administrative law" and "administrative law courts" would be concocted; for a great reason why the IRS is feared and hated is not just its "Powers of Inquisition," but the vast size and incomprehensibility of the Tax Code. James Madison described the effects of that quite well in the Federalist No. 62:
It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?
....Every new regulation concerning commerce or revenue, or in any manner effecting the value of the different species of property, presents a new harvest to those who watch the change, and can trace its consequences; a harvest, reared not by themselves, but by the toils and cares of the great body of their fellow-citizens....
....What prudent merchant will hazard his fortunes in any new branch of commerce when he knows not but that his plans may be rendered unlawful before they can be executed? What farmer or manufacturer will lay himself out for the encouragement given to any particular cultivation or establishment, when he can have no assurance that his preparatory labors and advances will not render him a victim to an inconstant government?...
....No government, any more than an individual, will long be respected without being truly respectable; nor be truly respectable without possessing a certain portion of order and stability.
Again, Madison did not anticipate that the "voluminous" and "incoherent" regulations would be written, not even by elected officials, but by unaccountable bureaucrats -- bureaucrats who cannot avoid frequently giving incorrect or contradictory answers to taxpayers calling the IRS with questions. The result, indeed, is that the federal government, faithless and treacherous to its Constitutional charge, is no longer "truly respectable." Not just "order and stability" have been lost: Tyranny has come to America.
In light of this, the following legal principles should be adopted:
No actions by government agents or agencies are free of the restrictions imposed by the Fourth Amendment or other articles of the Constitution and the Bill of Rights.
There are no legal actions apart from the criminal and the civil, with the full Constitutional protections established for each.
There can be no courts or judicial proceedings apart from duly constituted components of the Independent Judiciary, wherein the protections of Trial by Jury cannot be suspended or restricted.
Legislative bodies cannot delegate the power of making laws, or confer upon anyone the power of making any rule or regulation that has the force of law.
The only Constitutional exceptions to these rules concern the military, military discipline, military justice, and (in times of war, invasion, or rebellion) martial law.
These principles will not prevent any further bad laws or tyrannical practices, but they will defuse the structural tyranny that has been created through "administrative law," its "inquisitors," its regulatory extra-constitutional legislators, and its fraudulent "courts." Further restrictions would concern the use of civil law for government actions, treated elsewhere.
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Political Economy
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