Judiciary Archives

Defending the Indefensible

That’s what Byron York thinks is the job of the Obama administration’s solicitor general, Donald Verrilli. First it was ObamaCare, now it’s the Arizona illegal immigrant laws. John Hinderaker notes some of the disconnects that Mr. Verrilli is desperately trying to connect.

Justice Sotomayor was commenting here on an extraordinary aspect of the Obama administration’s position, to the effect that it is OK if individual Arizona law enforcement officers decide to cooperate with federal immigration authorities, but if the state directs them all to cooperate, it is somehow unconstitutional. The Obama administration literally argued that for a state to engage in “systematic cooperation” with the federal government on immigration is unlawful. We can’t blame Mr. Verrilli for his inability to sell that bizarre argument. We do blame Barack Obama and Eric Holder for trying to assert it.

Of course, what is going on here is that the Obama administration doesn’t want to enforce the immigration laws that Congress has enacted. The essence of its position in the Arizona case is that the federal government has the right to decide not to enforce the law, and if it so decides, then no state has the power, under the Constitution, to do anything that would tend to enforce those federal laws. So if the Obama administration decides that it will gain political advantage by ignoring federal laws against illegal immigration, states like Arizona just have to take the consequences without complaining.

Mr. Verrilli has to twist himself in knots to try to defend the indefensible; a government that chooses which laws to enforce and which to ignore, and which want to force states to tow their particular line. The states will have none of that, and this case will determine whether the federal government can, indeed, actually legislate by ignoring laws it doesn’t like.

Friday Link Wrap-up

A federal government out of control. Without any evidence, Attorney General Eric Holder took a woman to court for obstructing the entrance to an abortion clinic. The judge threw out the case and ordered the government to pay $120,000 to the woman. Yes, it’s good that the woman was compensated, but this case should have never gone to court.

I think Julian Assange has been irresponsible for dumping secret data that, in many cases, has put lives at risk or tipped our hand to enemies. Still, it’s nice to know that, in all that, George W. Bush has been vindicated in his handling of the Iraq/WMD situation.

I agree with the sentiment that the teen’s shirt said, "Jesus Is Not A Homophobe". However, I also think that the folks he thinks need that message aren’t, for the most part, homophobes either, if, by "homophobe" you mean "someone who agrees with 2000 years of Christian teaching".

Global Warming Update: "The number of [polar] bears along the western shore of Hudson Bay, believed to be among the most threatened bear subpopulations, stands at 1,013 and could be even higher, according to the results of an aerial survey released Wednesday by the Government of Nunavut. That’s 66 per cent higher than estimates by other researchers who forecasted the numbers would fall to as low as 610 because of warming temperatures that melt ice faster and ruin bears’ ability to hunt."

James O’Keefe is at it again. He, a white guy, to prove that voter fraud really is simple, something that Attorney General Eric Holder denies, was able to (almost) vote in the primary as Eric Holder himself, a black guy. Extremely easy.

An atheist who threatened to sue over a Nativity scene, was helped in his time of need by the very Christians he had threatened. Result: He’s now a Christian preparing to enter the  ministry.

John Stossel, libertarian and (when he was at ABC News) a contrarian in the media, describes the liberal bias at his old network.

Ever since Jimmy Carter got snookered by giving food to North Korea in exchange for an empty promise not to pursue nukes, we keep hoping that they’ll change their mind about belligerence if we bribe them well enough. It hasn’t worked, and it won’t work. A dictator that will spend who knows how many millions on a missile program while his country starves is patently not concerned about his people. Period. No amount of appealing to his better nature will change that. Now that N. Korea has test launched (what Rick Moore calls) a "three-stage artificial reef", now we’re serious. Now we mean business. Well, I’ll believe it when I see it.

Civility Watch: "Moderate Caucus" chairman, a Democrat, tweets, "Cheney deserves same final end he gave Saddam. Hope there are cell cams."

President Barack Obama vs. History

The President said something yesterday that just goes against 200+ years of American history, including the notion of the separation of powers and the responsibility of the judiciary. But first, some of that history.

The famous Supreme Court case Marbury v. Madison set up what was the primary purpose of the US Supreme Court. From Wikipedia:

Marbury v. Madison, 5 U.S. 137 (1803) is a landmark case in United States law and in the history of law worldwide. It formed the basis for the exercise of judicial review in the United States under Article III of the Constitution. It was also the first time in Western history a court invalidated a law by declaring it "unconstitutional". The landmark decision helped define the boundary between the constitutionally separate executive and judicial branches of the American form of government.

To repeat, this was the "the first time in Western history a court invalidated a law by declaring it ‘unconstitutional’." Pretty big deal. And it’s one that the Court has exercised many times in the past. From Answers.com:

Unconstitutional and Preempted Laws 1789-2002
According to the GPO (Government Printing Office Database):

1789-2002 Acts of Congress Held as Unconstitutional…………………………158

1789-2002 State Statutes held unconstitutional………………………………..935

1789-2002 City Ordinances held unconstitutional………………………………222

1789-2002 State and City laws preempted by Federal laws…………………..224

Total State, Local and Federal Laws Declared Unconstitutional…………….1,315

Total State and Local Law Preempted by Federal Laws…………………………224

Total Laws Overturned, all governments……………………………………….1,539

Now, this table of figures is being quoted all over the Internet today, with the source being Answers.com, and the Answers.com page does not have a link back to its source information, so take these figures with a grain of salt. But regardless of the specific numbers, we do know that the Supreme Court has struck down laws as unconstitutional before. That is, after all, the purpose that Marbury v. Madison gave it 209 years ago.

With that in mind, let’s listen in on a statement made to the press yesterday regarding the ObamaCare case before the Supreme Court.

"I am confident the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically-elected congress," President Obama said at a White House event in the Rose Garden today.

"I just remind conservative commentators that for years we have heard the biggest problem on the bench was judicial activism or a lack of judicial restraint. That an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example and I am pretty confident that this Court will recognize that and not take that step," Obama said to the White House press.

"Unprecedented." Really? "Extraordinary." Is that so? Even if we did not have that table of numbers above, few of us would really believe that, until now, the court has never struck down a law because it is unconstitutional.

And Dave Kopel at the Volokh Conspiracy blog has an answer for those sticklers who would say that the President was speaking specifically about "a law that was passed by a strong majority of a democratically-elected congress".

President Obama can call legislation enacted by a vote of 219 to 212 a “strong” majority if he wishes. But there is nothing in the Constitution suggesting that a bill which garners the votes of 50.3% of the House of Representatives has such a “strong” majority that it therefore becomes exempt from judicial review. To the contrary, almost all of the 165 federal statutes which the Court has ruled unconstitutional had much larger majorities, most of them attracted votes from both Democrats and Republicans, and some of them were enacted nearly unanimously.

[Note: His number of 165 is through 2010, and comes from a GPO document that he does link to, but it doesn’t have a nice table of figures to show that. Kopel’s post is worth reading the whole thing. Also, I honestly titled my blog post before reading his entry. Really.]

The striking down of ObamaCare would not, as the President claims, be a case of "judicial activism"; a term I think he is just employing to try to get a dig in at conservatives and throw some red meat to his supporters. In striking down this law, the justices would not be finding new rights in the Constitution; they would be establishing that the Constitution says only what it says and nothing more. In fact, it is Congress and the President being unprecedented here, insisting that the power to regulate commerce between the States includes the right to compel someone to enter into a contract. "Compulsory contract" is an oxymoron, and the court ought to hold Congress at least to what makes logical sense.

Further, the President already knows that the Supreme Court strikes down laws, because he’s lobbied for it before. From Kopel:

It would not be unfair to charge President Obama with hypocrisy given his strong complaints when the Court did not strike down the federal ban on partial birth abortions, and given his approval of the Supreme Court decision (Boumediene v. Bush) striking down a congressional statute restricting habeas corpus rights of Guantanamo detainees…. The federal ban on abortion, and the federal restriction on habeas corpus were each passed with more than a “strong” 50.3% majority of a democratically elected Congress.

The President is trying to intimidate the Court and garner some modicum of public support by lying about history. This from a guy who was a Constitutional law professor senior lecturer. It’s incredibly disingenuous and outright dishonest. But will anyone on his side of the aisle call him on it?

Friday Link Wrap-up

It has been said that we’ve not had global warming on the scale that we have it now, and therefor this time around it must be human-induced. The Medieval Warming Period, it is said (and reiterated by the IPCC), was merely localized and therefore can’t be compared with today. New evidence, however, shows that indeed the MWP was felt as far away as Antarctica. Not exactly localized.

Taxing the rich rarely lives up to expectations of the amount it will bring in. That’s because the rich have many options of where to put their money. Cause pain in one place, the cash moves to another place. (Some on the Left will inevitably say that this makes the case for a global tax. Well, when our government can’t get by on $4 trillion a year, it’s not the fault of the rich.)

A crowd larger than any OWS gathering protested in San Francisco, but the media ignored it. Why? (Wait for it…) Because they were religious people protesting Obama. Some news is clearly more newsworthy than others. Oh, that liberal media.

Liberals were so absolutely sure that their view of the "living" Constitution was right, they were predicting a near-slam-dunk for them in the Supreme Court over ObamaCare. But exhibit A of how they simply failed to take seriously the arguments against it is Jeffrey Tubin of CNN. He was sure it would be 7-2 or even 8-1 in favor of the ACA, and was just gobsmacked after day 2. Why? The very same arguments used against ACA had been out there for months. But the news wouldn’t give it adequate coverage. Mr. Tubin, you could blame CNN for your ignorance. But then, that would mean you have no responsibility as a journalist to find it out for yourself. Oh, that liberal media.

And finally, something for the "separation of church and state" crowd. A US Army issued New Testament with a letter from the President recommending that soldiers should read it.

Infanticide By Any Other Name

I didn’t want to bury this post in a "Friday Link Wrap-up", so I’m forgoing that feature to focus on what Mark Steyn calls a "fourth trimester" abortion.

Albert Mohler brings up a recent court decision in Canada where a mother was convicted of strangling her newborn baby and tossing him over the fence into a neighbor’s yard. To compound this horror, the Canadian justice system (and I use the term "justice" very loosely) decided she would not spend any time in jail. None. Here’s how the judge justified this.

Justice Joanne Veit, whose name should now go down in legal and moral infamy, tied this woman’s act of infanticide to Canada’s lack of legal restrictions on abortion. The judge’s decision stated that “while many Canadians undoubtedly view abortion as a less than ideal solution to unprotected sex and unwanted pregnancy, they generally understand, accept and sympathize with the onerous demands pregnancy and childbirth exact from mothers, especially mothers without support.”

She continued: “Naturally, Canadians are grieved by an infant’s death, especially at the hands of the infant’s mother, but Canadians also grieve for the mother.” She also stated that the Canadian approach is a “fair compromise of all the interests involved.”

Two juries had found Effert guilty of second-degree murder, but an appeals court had reduced her conviction to infanticide.

This is what comes from acceptance of a million abortions per year, and what comes from a judiciary far more concerned about feelings than laws. Mohler’s column notes that this slippery slope has been known to be coming for years now, but the Left has been deaf to the warnings.

The ultimate insult is that Effert may actually spend time in jail, not for killing her baby, but for throwing the lifeless body into her neighbor’s yard. Kill your child and we’ll grieve with you, but litter? That’s over the line.

I’ve heard those on the Left, including Christians, suggest that if you’re against abortion, just don’t have one. But life, even (especially) of the "least of these" is worth defending. Mohler closes by explaining why.

Mark this well — the horrific logic of this judge’s decision will not remain in Canada. Indeed, it did not even start in Canada. Those arguments are already in place in the United States. If we will not defend life in the womb, eventually the dignity of every single human life is thrown over the fence.

The initial questions and observations of the judges don’t sound good for the prospect of ObamaCare, but that’s by no means an indicator of how they’ll vote. One analyst I heard said that this ruling, whatever it is, may wind up being the law of the land. If the case goes to the Supreme Court, Justice Kagan will, or should, recuse herself, as she was instrumental in crafting the legal defense of ObamaCare itself. If that happens, the court could very possibly wind up in a 4-4 tie, leaving the 11th Circuit Court ruling to stand. Stay tuned.

On The Radio

I sometimes cross-post items from this blog to my diary on RedState.com, one of the top conservative web sites. Occasionally, the editors find a diary entry that they like and promote it to the front page. They did this to my post about the Christian family in the UK that was denied the chance to do foster parenting because of their beliefs. This, of course, gives it much wider readership, and I wound up getting an e-mail from Melody Scalley who does a weekly conservative radio show on WESR in Virginia. She wanted to interview me about the article, and so this afternoon we had a 5-10 minute talk on the phone, which she’ll be running on her show tomorrow night.

I don’t see any way to get streaming audio or a podcast, so I’ll see if I can come up with the segment from somewhere. But if you just happen to be on the Virginia peninsula near Onley, tune in tomorrow to 1330 AM or 103.3 FM between 6 and 8pm.

Citing Your Values to Overturn Your Values

That’s precisely what a court in the UK has done. They’ve cited the values that the country was founded on — Judeo-Christian ones — to rule against holding to those values.

There is no place in British law for Christian beliefs, despite this country’s long history of religious observance and the traditions of the established Church, two High Court judges said on Monday.

Lord Justice Munby and Mr Justice Beatson made the remarks when ruling on the case of a Christian couple who were told that they could not be foster carers because of their view that homosexuality is wrong.

The judges underlined that, in the case of fostering arrangements at least, the right of homosexuals to equality “should take precedence” over the right of Christians to manifest their beliefs and moral values.

In a ruling with potentially wide-ranging implications, the judges said Britain was a “largely secular”, multi-cultural country in which the laws of the realm “do not include Christianity”.

Is Britain’s government "largely secular"? Yes, it is, as are all Western democracies. Our own founding fathers in the US did not set up a theocracy. But this by no means suggests that the government should take no position that happens to coincide with a religious view. Laws in our country against murder, theft and extortion are rooted in Christian morality; the Biblical ideas of the intrinsic value of each human being, and the values of justice and fairness. Further, we have death penalties, when we do have them, for only the worst offenders, and for the same reasons.

While other countries may have similar laws, this is more than a law issue. Our culture itself was shaped by these same Judeo-Christian values. I’ll make the obligatory disclaimer that it has been implemented by fallible human beings, and it’s not always been in a manner consistent with itself. Still, this foundation has produced the freest, wealthiest, healthiest and, yes, most tolerant countries in history. Millions of immigrants and refugees are trying to get into Western democracies all the time because of the results of holding to those values.

In fact, the judges unwittingly note this foundation in their ruling.

“Although historically this country is part of the Christian West, and although it has an established church which is Christian, there have been enormous changes in the social and religious life of our country over the last century,” they said.

It was a “paradox” that society has become simultaneously both increasingly secular and increasingly diverse in religious affiliation, they said.

“We sit as secular judges serving a multicultural community of many faiths. We are sworn (we quote the judicial oath) to ‘do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will’.”

The irony is clear. These judges are citing an oath, that has been proscribed by the government influenced by the Judeo-Christian culture, to rule against people exercising their Judeo-Christian beliefs. You won’t find an oath like this in countries where you can be persecuted for believing the "wrong" religion. This value of fairness to all, regardless of who they are, is thanks to, for the most part, the Biblical beliefs of the Johns family, the ones trying to become foster parents.

Is it, therefore, "fair" to only allow people with the right beliefs and religious affiliation, approved by the government, to become foster parents? Will the court make the same ruling for Muslims and Jews who feel the same way? Apparently, society’s shifting standards win out over a basic, fundamental right of freedom of religion.

However, when fostering regulations were taken into account, “the equality provisions concerning sexual orientation should take precedence” over religious rights, they said.

And thus, the more homosexuals, or any group with a protected status, can convince governments that they must have special rights to override basic human rights, the more the foundation is chipped away; the very foundation that made this society what it is today, with our without an established Church. 

Some Anglican church officials say essentially the same thing.

Speaking personally, Canon Dr Chris Sugden, the executive secretary of Anglican Mainstream, said the judges were wrong to say religion was a matter of private individuals’ beliefs.

“They are treating religion like Richard Dawkins does, as if Christian faith was on a parallel with Melanesian frog worship,” he said.

“The judgment asserts that there is no hierarchy of rights, but itself implies there is one in which the right to practise one’s religion is subordinated to the secular assumptions about equality.”

Gays use to say that they didn’t want special rights, just equal rights. This is another example of special rights that cut to the very core of the free societies they live in. This is a huge step in the wrong direction.

Friday Link Wrap-up

Unrest in the Arab world. Autocrats killing their own people. Hezbollah working with Mexican drug cartels. And what’s the UN most concerned about? Israel. Right. Meryl Yourish has more.

Speaking of which, the Saudis tried to “stimulate” their economy in hopes of avoiding the same unrest plaguing other Arab nations. Doesn’t look like the citizens will be bought off that easily. (Pity that ours are so easily bought off.)

The inverted morals of the Left; killing babies is OK, but circumcising them once their born should be against the law. Even if you’re Jewish.

Worried about an oligarchy where the rich and powerful pay to have laws favorable to them? Then never mind the Koch brothers, it’s labor unions you should be worried about. (But the Left won’t worry about them, because they’re the right kind of money and power.)

The headline reads, “Gaza militants fire missile at Be’er Sheva for first time since Gaza war”. Technically correct, but Qasams fall there virtually daily, but you wouldn’t know from our news media.

The Left is still pushing the meme that “right wing ‘hate’ groups” and their uncivil rhetoric caused the shooting of Rep. Gabrielle Giffords.

Civility Watch: The uncivil discourse has not been just in Wisconsin. Nazi imagery and racial slurs have been used in protests around the country, most recently in Massachusetts, Washington, DC, and Colorado. And while fully documented, none were mentioned by the media. Think it may have something to do with the fact that the protests were all for liberal causes?

In order to find that the ObamaCare individual mandate is constitutional, a judge had to somehow equate action with inaction. The result was never in doubt, it’s just how to get there that is the issue for these liberal judges.

CNN’s Candy Crowley put on her rose-tinted glassed once Obama was elected. I mean people were burning Bush in effigy for the previous 8 years, and now people love us. Donald Rumsfeld disagrees, and Lori Ziganto has evidence to the contrary.

It’s official: The State Department supports expelling Libya from the UN Human Right Council. Where in the world were these guys when Libya was put on the UNHRC? Back in May, we just called the HRC “flawed”, which may be last year’s biggest understatement. In fact, it’s the whole UN that is flawed.

And finally, oh, that liberal media. A comparison of Tea Party protest coverage, and union protest coverage. Love that independent, unbiased media.

"Judicial Activism"

James Taranto gives us a good history of the term "judicial activism" and its varied uses over the decades, especially with regards to the latest charges of "judicial activism" against judges who consider ObamaCare unconstitutional. Worth a read.

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