Ten Most Retarded Administration Legal Arguments of 2007

It wouldn't be New Year's without a Top Ten List of Something from 2007. Dahlia Lithwick provides a really interesting and (unfortunately) hilarious list of the biggest whoppers the Bush Administration has passed off as a legal argument this past year. Here are a couple of highlights:

8. The vice president's office is not a part of the executive branch.

We also learned in July that over the repeated objections of the National Archives, Vice President Dick Cheney exempted his office from Executive Order 12958, designed to safeguard classified national security information. In declining such oversight in 2004, Cheney advanced the astounding legal proposition that the Office of the Vice President is not an "entity within the executive branch" and hence is not subject to presidential executive orders. When, in January 2007, the Information Security Oversight Office asked Attorney General Alberto Gonzales to resolve the dispute, Cheney recommended the executive order be amended to abolish the Information Security Oversight Office altogether.

Frankly, I thought this item should be much closer to #1. I know it may not be the most damaging lie on the list, but in terms of sheer stupidity, it is without comparison. No vice president since Alben Barkley (there's a name I bet you have forgotten) has presided over the Senate regularly. The vice president performs his legislative duties for about five minutes every year - which is just enough time to tell Pat Leahy to go f*&^ himself. I think it is incredibly ironic that the same Administration that believes that Article II gives the president the right to do just about anything without congressional approval does not believe the VP's office falls under that article.

And, what else would you expect to be #1?

1. The United States does not torture.

First there was the 2002 torture memo. That was withdrawn. Then there was the December 2004 statement that declared torture "abhorrent." But then there was the new secret 2005 torture memo. But members of Congress were fully briefed about that. Except that they were not. There was Abu Ghraib. There were the destroyed CIA tapes. So you see, the United States does not torture. Except for when it does.

That logic is so convoluted, it eats itself. FYI, the claim that "waterboarding is not torture" also made the list. I particularly enjoyed watching Rudy Giuliani, the senior terrorism expert, in the presidential race waffle on whether that statement is true or not. Of course it is. Even a blind man without any legal training can figure this one out. I don't think this would even be an issue if we used the correct name for this procedure: simulated drowning. Waterboarding sounds like something you would watch on ESPN2 on a Tuesday afternoon.

The one argument omitted from the list that should have been included was the Bush Administration's argument in Hein v. Freedom from Religion Foundation, which eviscerated the ability of taxpayers to sue the federal government for church-state separation violations. In its brief, which became the logic for the majority opinion, the Administration argued that the Court's precedent supports the right of taxpayers to sue over congressionally appropriated funds that support religious organizations. But since the President's Office of Faith-Based and Community Initiatives is a purely executive branch creation, the precedent does not apply to this case.

When taken in context with the Bush Administration's beliefs about the Office of the Vice President, I guess this argument makes sense, depending on how many drinks you have had today.

Speaking of drinking, have a very Happy New Year! See you in 2008.

Best Motion for Continuance Ever!

Thanks to the good folks at Above the Law for breaking this story. Sorry you have to rotate the image and zoom in. But it is worth the effort.

continuance - Upload a Document to Scribd

Read this document on Scribd: continuance

Best 9th Circuit Decision Ever!

Alternate title to this post: "They may take our lives, but they'll never take...OUR BEER!!"

Thanks to Quiz Law and Reason Magazine for bringing this landmark civil rights case to my attention.

An employee of TransUnion, one of the three major credit rating agencies, pleaded guilty to fixing people's bad credit reports in exchange for bribes. As part of his probation agreement, the trial judge wanted the man, Marcus Betts, to abstain from alcohol for three years.

Betts, who is the Rosa Parks of the Drinking-American community, challenged this requirement as an abuse of judicial discretion. And a three-judge panel on the 9th Circuit agreed unanimously. The panel found that alcohol played no role in the crime, and that Betts has not had past problems with alcohol.

Writing for the panel, Judge Andrew J. Kleinfeld said: “Moderate consumption of alcohol does not rise to the dignity of our sacred liberties, such as freedom of speech,” he wrote, “but the freedom to drink a beer while sitting in a recliner and watching a football game is nevertheless a liberty people have, and it is probably exercised by more people than the liberty to publish a political opinion. Liberties can be taken away during supervised release to deter crime, protect the public, and provide correctional treatment, but that is not why it was taken away in this case."

So as you gather with friends and family this holiday season, please take a moment and reflect on the freedoms you enjoy as citizens of this great nation. The right to speak freely, the right to cast a ballot, and the right to enjoy a cold brew on your recliner. Thank you Judge Kleinfeld for taking a bold stand. I will raise my glass in your honor tonight. Freedom has never tasted so refreshing.

Ft. Sumnter...again!

I can think of no better way to celebrate the peace and goodwill of the holiday season than secession. No, you have not been transported back to 1861. This is 2007, and the United States just got a little smaller.

The Lakota Indians (yes, the tribe that produced Sitting Bull and Crazy Horse) have withdrawn from every treaty they have made with the United States government. "We are no longer citizens of the United States of America," declared long-time Indian rights activist Russell Means. The new country (creatively named the Lakota Nation) will issue its own passports and drivers licences. Anyone can live there would be tax-free -- if you agree to renounce your U.S. citizenship.

Means claims that this action is completely legal because the United States government has not honored its treaty obligations, despite the Article VI requirement to follow treaties as supreme law of the land. The State Department has not issued a response. If negotiations with the State Department are not successful, the tribe plans to file liens on property in parts of South Dakota, Nebraska, North Dakota, Montana and Wyoming that were illegally homesteaded.

Here's a word of advice to the Lakota people: Appomattox. Yeah, secession didn't turn out so well the last time it was attempted. The federal government tends to get a little pissed off when this kind of thing happens. And you are a bit more outnumbered than the Southerners.

Look, I am completely sympathetic to your cause. Those treaties that you signed with the federal government are worth no more than the paper they are written on. But I just don't see this situation ending well for the Lakota people. Good luck (you're gonna need it).

Justice Scalia's worst nightmare

I always love it when important legal issues are discussed in very bizarre cases. A swingers club run on the weekends in a home outside of Dallas is causing a controversy over the reach of local government's police power. The club is so popular that it is apparently pretty loud and the streets around the house become crowded. Needless to say, their neighbors are not pleased. Some bloggers even joked that local Baptists were trying to shut the swinger parties down because they might lead to dancing. Hehehe.

So, the city council banned the gatherings from taking place by regulating the club as a business. The couple that organizes the parties collects voluntary donations to fund the parties, and the city is using this as the basis for the ban. But the couple counters that they have a legitimate claim to privacy. According to Newsweek:

The U.S. Supreme Court implied in a 1990 case involving the city of Dallas and sex businesses that commercial sexual activity does not constitute expression under the First Amendment. But Klein, the Cherry Pit's attorney, says Trulock and Norris's fight to protect the swinging lifestyle in the privacy of their own home is supported by a more recent Supreme Court decision, the 2003 Lawrence v. Texas case that struck down Texas's sodomy law. "That case is the seminal case about regulating private conduct," Klein says. "Any kind of private activity, [even] wearing pink socks in your home."

Pink socks? Is that part of the homosexual agenda? But seriously though, pink socks don't cause a public nuisance. This club does. I don't think this club is a business because the donations are purely voluntary and the club doesn't turn a profit. But the city council could use other grounds to regulate it. Pass a stronger noise ordinance. Require a resident parking pass to park on the street.

The couple is suing to get an injunction placed on the city ordinance. I can't wait for the judge's ruling. The findings section will be quite stimulating...

Tea Time

Happy Birthday to the Boston Tea Party! It was on this day 234 years ago that Boston Harbor became very tasty, when the Sons of Liberty destroyed 300 crates of tea from the East India Company.

In a brilliant stunt yesterday, supporters of libertarian Republican presidential candidate Ron Paul staged a reenactment of the Tea Party yesterday. The stunt helped him raise $5 million over the Internet, shattering a record set when he urged his supporters to give him money on Guy Fawkes Day (but that isn't even an American rebellion!).

I am very proud to say that one of my ancestors was present for this event in history. Here's an excerpt from my family genealogy for James Blake (who was 11 at the time):

It is stated that in 1770 [sic], when the tea was thrown overboard in Boston Harbor, he, thinking it might be the last chance his mother would have to secure some good tea, put on his father's course shoes, and scuffing about on the decks of one of the tea ships in the wasted tea from the broken chests, till his shoes were full, ran home and emptied them into his mother's tea can, returning for more till he secured her supplies for the coming tea famine.

What a smart kid! Well apparently, the organizers of the protest were a little more hard core than my great-great * 5 grandfather:

The next morning, after we had cleared the ships of the tea, it was discovered that very considerable quantities of it were floating upon the surface of the water; and to prevent the possibility of any of its being saved for use, a number of small boats were manned by sailors and citizens, who rowed them into those parts of the harbor wherever the tea was visible, and by beating it with oars and paddles so thoroughly drenched it as to render its entire destruction inevitable."

I bet that if the East India Company had a shipment of rum coming into Boston Harbor, the Son's of Liberty would not have been so intent on its destruction. I'm just sayin....

Happy Birthday to Heart of Atlanta Motel!

Thanks to Today in Legal History for providing such good material. On this day 43 years ago, the Supreme Court upheld the constitutionality of the 1964 Civil Rights Act in the case Heart of Atlanta Motel v. United States.

The case was brought to the Supreme Court by attorney and notorious segregationist Moreton Rolleston who refused to let African Americans stay at his motel. The property bordered "on an interstate highway...advertises in national magazines and gets 75% of its guests from outside Georgia," according to a Time magazine article at the time.

Rolleston actually represented himself in front of the Supreme Court. Time notes: "Ignoring that evidence, the motel's Owner-Lawyer Moreton Rolleston Jr. proceeded to lecture the Justices: 'The argument that this law was passed to relieve a burden on interstate commerce is so much hogwash. It was intended to regulate the acts of individuals.' If the commerce clause can be stretched that far, declared Rolleston, 'Congress can regulate every facet of life.'"

Rolleston also argued that by requiring him to "rent available rooms to Negroes against its will, Congress is subjecting it to involuntary servitude in contravention of the Thirteenth Amendment." Hahahaha. I can't even write that with a straight face.

Needless to say, a unanimous Supreme Court rejected all of Rolleston's arguments in issuing the most important Commerce Clause decision since the New Deal. Rolleston eventually sold the property, rather than obey the Court's decree. That property is now home to the Atlanta Hilton. Justice Tom Clark (who wrote an amicus brief in Shelley v. Kraemeras President Truman's Solicitor General), concluded his opinion for the Court by saying:

We therefore conclude that the action of the Congress in the adoption of the Act as applied here to a motel which concededly serves interstate travelers is within the power granted it by the Commerce Clause of the Constitution, as interpreted by this Court for 140 years. It may be argued that Congress could have pursued other methods to eliminate the obstructions it found in interstate commerce caused by racial discrimination. But this is a matter of policy that rests entirely with the Congress, not with the courts. How obstructions in commerce may be removed -- what means are to be employed -- is within the sound and exclusive discretion of the Congress. It is subject only to one caveat -- that the means chosen by it must be reasonably adapted to the end permitted by the Constitution. We cannot say that its choice here was not so adapted. The Constitution requires no more.

Retarded state courts: equity.

Our favorite thing to do here at the dicta is call state governments "retarded," because let's face it: state governments are frequently retarded. The legislature of Alabama has actually entertained a bill to repeal the laws of gravity. California experienced that marvelous phenomenon of a political party telling its supporters to vote against recalling an unpopular governor AND to vote for a replacement for that governor. And for retarded courts, you can't beat a court of law sitting in equity.

For the law students and non-lawyers who read here, let me let you in on a little secret that law students know and lawyers may eventually forget: in law school, the professors teach you what they call "The Law," but then you get into a court of equity and "The Law" is "Whatever the judge thinks is fair." Literally - courts of equity come from the English Chancery, which was the "conscience of the king" in medieval times, and could do violence to the law in the interests of justice as defined by the Chancellor. So you think you're learning something resembling a science, with some type of predictability, and then you get thrown into a court of equity, and no, you aren't - and oh, by the way, you better hope the judge likes his Post Toasties soggy, because he may rule against you for no better reason than "I wanted Cream of Wheat for breakfast."

Nowadays, in America, courts of equity basically have one realm of jurisdiction left, and that's probate - that's right, wills (aside: there are other circumstances in which a court sits in equity, but they're relatively minor). So let me tell you a story:

Suppose you were an elderly gentlemen, and you had some descendant of yours placed on your bank account as a signatory, so they could care for you. Does this bank account pass via your will?

Now, a little bit of background is in order (I promise, it'll only hurt a little). For purposes of this exercise, there's two types of property - probate and non-probate. Probate can be passed via will; non-probate cannot. Joint tenancies (which joint bank accounts are) are non-probate properties for reasons too complex to go into. So, does the bank account pass via will?

Those who say no, are correct on the law. The addition of the second signatory makes it a joint bank account, and when the owner of the account dies, his interest is extinguished and his caretaker signatory takes the entire account.

But remember, we aren't a court of law; we're a court of g*dd*mn m*therf*cking equity. So no, the account does in fact pass via will - IN COMPLETE DEFIANCE OF THE LAW.

Franklin v. Anna National Bank, 488 N.E.2d 1117 (Ill. App. 1986).

Here's the scary part: shit like this goes down every damn day. People walk into "probate court" or "chancery court" or "court of common pleas" and throw out an argument that basically boils down to "but Daddy, it's not FAIR!" with strong overtones of whining, and they win.

This, more than anything else, is what makes my head go asplode-y when I deal with wills. The idea that the court can walk into chambers, stare at its navel, and come back and announce that it will ignore the law in favor of "justice," whatever the hell that means, makes my shoulders shake with rage.

I have said it before, and I will say it again: I am a lawyer. I deal in law. I leave justice to philosophers.

'Course, if you want to pay me to argue "IT'S NOT FAIR!" I'll do it. But no whining. That costs extra.

And grovelling is even more expensive.

Picture of the day!

Here's President Bush with German Chancellor Angela Merkel. Look very closely. At the dashboard. Wow. I thought Bush quit drinking. Maybe it belongs to Merkel (I would definitely need some alcohol to get through a meeting with our country's Jackass-In-Chief).

Embracing my inner nerd

One of the reasons I love the month of December is that it is the time when all the good movies are released. I urge you to go see The Great Debaters, which will be out on Christmas Day. The film, which Denzel Washington directs and stars in, chronicles the journey of Professor Melvin Tolson, a debate coach at a small HBC who trains his students to become elite debaters. The climax of the movie occurs when Tolson's debaters take on the Harvard debate team in 1935 on a national radio broadcast.

Many of you might not know that I was a debater in high school and college, and I continue to coach my high school alma mater's debate team. I have been involved in speech and debate for 12 years now. Debate is a cult for nerds, and I haven't found a way to escape it yet.

Anyways, here's the preview:

And that's not all...There was a movie this summer about high school debate, made in the style of Little Miss Sunshine. The film, called Rocket Science, will be released on DVD January 28. I am ashamed to admit I have not seen it yet so I look forward to the DVD. Here's the preview:

Retarded state legislation: Pennsylvania edition

Justice Brandeis once called state legislatures "laboratories of democracy." Well occasionally a good laboratory can produce a Frankenstein's monster. Check out this special holiday edition from Pennsylvania (with a few additions suggested):

HOUSE RESOLUTION
No. 529 Session of 2007

Requesting citizens to honor the workers of this Commonwealth by buying American-made products.

WHEREAS, This Commonwealth has a long and proud some might say anachronistic tradition of manufacturing; and

WHEREAS, Pennsylvania's workers have produced steel for the tallest buildings and the mightiest warships and for innovative toys, such as the Slinky (that is actually in the resolution); and

WHEREAS, These jobs were family-building and family-sustaining, allowing generations of Pennsylvanians to prosper in the 19th century; and

WHEREAS, Manufacturing has steadily declined in this Commonwealth and the United States, due in part to less costly imported products; and

WHEREAS, The decline of manufacturing has led to many fewer family-sustaining jobs and attendant hardships for those families and the communities in which they live and work (Well we're living here in Allentown, And they're closing all the factories down) ; and

WHEREAS, There are still manufacturers of high-quality products which are made by American workers working for profitable companies like GM and Ford; and

WHEREAS, Citizens of this Commonwealth have within their power the ability to affect the viability of these products by making a conscious effort to "Buy American" so long as it doesn't cost more and it can be found at Wal-Mart; and

WHEREAS, We are entering the season of giving; therefore be it

RESOLVED, That the House of Representatives implore the government and the citizens of this Commonwealth to give the workers of this Commonwealth and this country a holiday present by making a conscious effort to put Pennsylvania first and buy American-made products. Please, we have no better ideas for economic development in this state. Seriously.

So raise your glasses up me boys and drink a hearty cheer!

On this day, 74 years ago, the 21st Amendment was ratified, officially ending Prohibition. Thus, I hope you will all celebrate Repeal Day today with a tasty beverage of your choice. But before you crack open a cold one, let's review the history surrounding this august occasion.

After being in effect for 14 years, Prohibition was unmade in just 288 days. The 21st Amendment survived an initial defeat in the House of Representatives, as well as a Senate filibuster. Check out this Time article from 1933:

The happiest, proudest day of his 57 years (30 of them in Congress) "came Aug. 1, 1917 when the Senate wrote national Prohibition into the Constitution. Every Jan. 16 since, all Senate business has had to halt while the "Father of the 18th Amendment" delivered an oration to commemorate the Amendment's effective date.

Now Senator Sheppard arose, not to praise Prohibition, but in a desperate last-ditch defense of it. Waiting at the Senate door was a Repeal resolution. To keep it off the floor the little Texan cleared his throat and said:

"Ten years ago lacking six days I addressed the Senate on the subject of the proceedings of the League of Nations. I now propose to take up where I left off ten years ago. . . ."

Thus began a pathetic one-man filibuster against Repeal.

The Amendment then went to the states, and for the first time in American history, Congress dictated that the amendment be ratified by state conventions rather than by the state legislatures. On December 5, 1933, three states held ratification votes: Ohio, Pennsylvania, and Utah. They became the crucial 34th, 35th, and 36th states to ratify the amendment. That's right - despite the fact that no one in the state of Utah drinks, they were the "swing state."

S0 when you have a drink tonight (or this morning, whatever), make sure to toast the great state of Utah. Those of you who live in Michigan, congratulations! Yours was the first state to ratify the amendment, so drink up. If you live in the states of SC, NC, MS, GA, OK, KS, ND, SD, NE, or LA you might have a drink to drown your sorrows, as your state never ratified the amendment. (Seriously, Louisiana never voted for the repeal of Prohibition!!)

You might also toast Sen. Morris Sheppard and Rep. Andrew Volstead, who sponsored the Prohibition Act. Since neither of them drank, we need to pick up the mantle and drink for them.

God bless America!

The worst kind of judicial activism...

...is inventing new clauses of the Constitution. Check out this hilarious post over at the Volokh Conspiracy about the Due Frocess Clause of the Constitution. Yes, stop rubbing your eye balls. I said Due Frocess.

Lack of attention to the Due Frocess clause is perhaps understandable. The Due Frocess clause has been mentioned by the Supreme Court only once, in Hoffa v. United States, 385 U.S. 293, 310 (1966) ("The argument is based upon the Due Frocess Clause of the Fifth Amendment.").

So maybe there isn't much to go on there. In contrast, the "Dur Process" clause has been mentioned in over one hundred federal and state cases. The U.S. Supreme Court has invoked the Dur Process clause no less than six times, mostly recently in Taylor v. Hayes, 418 U.S. 488, 503 n.10 (1974) ("But this statement — perhaps dissenter's license — misconceives our holding and undervalues the import of the Dur Process Clause.").

I believe the Dur Process Clause refers to the right of citizens to listen 19th century German opera, as established in the case of Wagner v. Gesamtkunstwerk.

However there are many unresolved questions surrounding this area of law. Does the incorporation doctrine mean the Court is obligated to apply the principles of Due Frocess to state governmental actions? Does Justice Scalia believe in substantive Due Frocess, or just procedural Due Frocess? What are the implications of Footnote 4 for economic Due Frocess rights? And finally, while the Court has rejected the Due Process Clause as a standard for most civil rights cases in favor of the Equal Protection Clause, would it be open to the possibility of judging affirmative action cases under the Due Frocess Clause?

Justice Thomas, take your own advice: shut up!

Over the past 22 months, do you know how many questions Justice Clarence Thomas has asked during oral arguments at the Supreme Court? 100? No way too high. 10? Getting closer. 1? Nope, still too generous. The answer is a big fat goose egg. I always thought that Thomas reticence was injurious to the Court's prestige. But then Thomas occasionally opens his mouth and makes me seriously wish he were mute all the time.

Thanks to some excellent reporting over at U.S. News and World Report, we have learned of Justice Thomas' recent temper tantrum in which he said, "My colleagues should shut up!" He then complained about how many questions get asked at oral argument.

I think that they should ask questions, but I don't think that for judging, and for what we are doing, all those questions are necessary. You don't have to ask all those questions to judge properly...Suppose you're undergoing something very serious like surgery and the doctors started a practice of conducting seminars while in the operating room, debating each other about certain procedures and whether or not this procedure is this way or that way. You really didn't go in there to have a debate about gallbladder surgery.

To quote Brother Brandeis, Whiskey. Tango. Foxtrot. This analogy couldn't be any worse. Judges are not doctors. They don't rip apart the Constitution and then sew it back together (though that does sound like a pretty decent metaphor for originalism). Judges are interpreters. They take words and assign meaning to them. It is perfectly appropriate for them to ask questions along the way.

Judging is supposed to be transparent. The public, the other branches of government, and lower courts MUST understand how the Supreme Court arrives at its decisions. That's why the Court issues those pesky little documents called opinions. If Thomas' logic holds, then the Court should issue all its decisions per curiam and without opinion, like New Orleans City Park Improvement Ass’n v. Detiege, Gayle v. Browder, and several other progeny of Brown v. Board.

Thomas' attitude is self-righteous and overconfident. He can't even admit there is a possibility that hearing an argument will cause him to change his mind. Preconceptions are all that matters to him. He is so in tune with the Gods of orginalism that he doesn't sully himself listening to mortal lawyers.

Justice Thomas also said of the Supreme Court: "This is not Perry Mason." No shit. And the presidency isn't like TV's The West Wing. Sorry oral arguments aren't as entertaining as watching Andy Griffith make a passionate closing argument. Maybe you never open your mouth because you're bored.