McCain and "natural-born citizen"

The New York Times has written about a topic that has been on my mind since Sen. John McCain ran for president the first time around - what does the Constitution mean when it states only a "natural-born citizen" is eligible to be president? Sen. McCain was born on a U.S. military base in the Panama Canal Zone in 1936.

This issue has sprung up periodically throughout U.S. history. George Romney, Mitt's father, was born in Mexico; Lowell Weicker was born in Paris. And there apparently have always been rumors that Chester A. Arthur, who lists his birthplace as Vermont, was actually born in Canada! That might be the most remarkable thing about Chester A. Arthur...

Most legal scholars believe that McCain would not have any problems meeting eligibility, despite the fact there is absolutely NO precedent on the issue. And the Framers don't offer us much guidance on the issue either. According to the Times, the "origin may be traced to a letter from John Jay to George Washington, with Jay suggesting that to prevent foreigners from becoming commander in chief, the Constitution needed to 'declare expressly' that only a natural-born citizen could be president." So I suppose the phrase is just meant to contrast with naturalized citizen.

But if you wanted get ridiculous in your interpretation of this phrase (which is this blog's specialty), I would be worried that any person born of a cesarean section would be ineligible...

South Park Cited in Appellate Court Opinion

To quote Lewis Black, I have neither the time nor the energy to make s#$% like this up.

First, a very grateful hat tip to Decision of the Day.

Here's a little context. The case involves a federal employee dismissed from her job for testing positive for marijuana. The Merit Systems Protection Board upheld the dismissal because of a zero tolerance drug policy, but the defendant claims that her employer bypassed the disciplinary process by mandating an automatic dismissal for a failed drug test. A three-judge panel for the Court of Appeals for the Federal Circuit agreed that the defendant is entitled to discovery to present this (somewhat bizarre) claim, so they vacated the MSPB ruling and remanded.

Judge Randall Rader dissented:

Baird v. Department of the Army, 2007-3046 (Fed. Cir., Feb. 26, 2008)

Moreover, this court should not unnecessarily interfere with the federal government’s purview to implement and enforce zero-tolerance policies for illegal drug use with respect to federal employees. The record shows that Ms. Baird had marijuana metabolites in her system while working as a psychiatric nursing assistant for the United States Army. The record also shows that Ms. Baird had notice that she could be subject to random drug tests. Removal thus seems a highly appropriate remedy. As Mr. Mackey from South Park would say, “drugs are bad, mmmkay?” By labeling this routine evidentiary call as an abuse of discretion, this court will serve only to force Ms. Baird and the government to expend further resources on remand to reach the same result. For these reasons, I respectfully dissent.

This is the first time a quote from a cartoon has been utilized in an appellate court decision in over a decade. Who can forget that legendary piece of dicta in Romer v. Evans when Justice Kennedy advised Justice Scalia: "Don't have a cow, man" after reading Scalia's blistering dissent?

Of course, the Supreme Court settled the controversy in Chef v. Morisette, which granted 6th Amendment relief to Chef after his incompetent lawyer was unable to overcome the dreaded Chewbacca Defense.

And finally, few legal scholars have noticed an important part of the Bush v. Gore, where in the per curiam opinion, the Court instructs the Florida Supreme Court to "respect my authority," and then states: "seriously, you guys."

Happy Birthday, Judicial Review

Yesterday marked the 205th birthday of arguably the most important Supreme Court case in history, Marbury v. Madison. The facts of the case are a bit confusing: incoming Secretary of State James Madison refused to deliver a commission issued by outgoing President John Adams, appointing William Marbury as Justice of the Peace in the District of Columbia. Marbury filed for a writ of mandamus from the Supreme Court directly, which was authorized under the Judiciary Act of 1789. However, Chief Justice Marshall (who was the outgoing Secretary of State that should have delivered the commissions), ruled that Congress cannot change the original jurisdiction of the Supreme Court because it would conflict with the conditions for original jurisdiction set forth in Article III of the Constitution. Thus, Marshall ruled that section of the Judiciary Act unconstitutional.

Cliff Notes version: judicial review is born.

Home is where the meth is

The 9th Circuit seems to have a talent for hearing bizarre cases. I might be so bold as to call them the most Dictalicious circuit in the country.

The case involves a Fourth Amendment dispute over the reach of Georgia v. Randolph. In that case, the Supreme Court ruled that when two co-occupants are present and one consents to a search while the other refuses, the search is not constitutional.

But there are some pretty hilarious facts you need to know about this 9th Circuit case:
1. A guy was living in a storage facility being rented by a friend of his.
2. The guy who rents the unit had tried (unsuccessfully) to kick the squatter out.
3. The guy in the storage unit was making meth (sounds like a wonderful chum).

The cops got permission from the guy renting the unit to search the unit for drugs. The guy living in the unit refused consent for the search. The district court ruled that the squatter did not "exercise sufficient control over the storage units to possess the authority to grant or withhold consent to a search of them." Intuitively, this makes some sense. He wasn't legally allowed to live there, and his friend did not want him there either.

But the 9th Circuit reversed, arguing: "The Randolph Court acknowledged the 'multiplicity of living arrangements' that people have, but stated that such variance does not mean that 'the rule to be applied to them is similarly varied.'"

This might be a bit of a stretch. The facts in Randolph involved a husband and wife who jointly owned a house. The wife gave consent to search a house, the husband did not.

I'm not sure where I come down on this. An acceptable compromise might be that when the squatter opened up the door to the storage unit to tell the officers to f*&% off, the meth paraphernalia was in plain sight. Maybe exigent circumstances would make the search lawful.

But the point of this case isn't who's right and who's wrong. The point is the 9th Circuit is looking out for the rights of meth-making storage unit squatters. They are people too, and they have rights. God bless America!

Hat tip to the good folks over at Decision of the Day.

Lawsuit: Whiskey Tasted Like Urine And I Got Fired

A very grateful hat tip to Quiz Law!

Lawsuit: Whiskey Tasted Like Urine And I Got Fired

Man Claims Fight Over Whiskey Cost Him Promising Job

CHICAGO (STNG) ― A night at the Drake Hotel is unforgettable for most but especially for Christopher T. Turner, who says a night there resulted in him losing a high-paying position, and is the reason he will probably always doing a sniff test before drinking alcohol from a hotel room's mini-bar.

After checking into his room at The Drake Hotel, 140 E. Walton Pl., Turner took out a small bottle of Dewar's White Label Scotch Whiskey from his room's mini-bar.

Turner claims after tasting it, the whiskey tasted like urine, according to a suit filed Monday in Cook County Circuit Court. Turner contacted the director of sales about the tainted whiskey, and a fight ensued because the director attempted to confiscate the bottle. Turner was thrown out of the hotel, forcing him to stay at the Park Hyatt Chicago.

At the time of the incident, Turner, 26, was employed by Binary Tree, a New York Corporation, and was in the process of getting hired by IBM for a "significant salary," when the incident happened on Feb. 19, 2007, according to the suit.

Turner, a software engineer from South Carolina, tried to get IBM to pay his hotel bill for his stay in Chicago.

After IBM or Binary Tree inquired with The Drake Hotel about Turner's brief stay, one company learned of their employee having an altercation with the director and being thrown out of the hotel.

He was later discharged from his position at IBM. The discharge caused Turner humiliation and embarrassment, the suit said.

Turner claims his employer's knowledge of this incident cost him more than $5,000 per week for about 27 weeks totaling $135,000 in lost wages.

Turner seeks in excess of $30,000 in damages.

As an Irishman (and therefore a whiskey drinker), I don't blame Turner for this lawsuit. Messing with a man's whiskey is a cardinal sin, especially when you're forking over something like $10 on a mini-bar drink. I won't even pollute my whiskey with ice. It is perfect the way God made it (and by God I mean the wonderful employees of the Jameson corporation).

BUT...the whiskey in question is Dewar's. It tastes like piss under perfect bottling conditions. Sure it might have been the White Label, but that's like saying PBR is a quality beer because it contains the words Blue Ribbon. I don't know what this guy was expecting.

I wonder if a judge would have to recuse himself from this case if he drinks Dewar's on a regular basis...

Did I Stutter? I Said I Plead the Fifth

A murder suspect is being questioned by police and says, "I plead the Fifth." Obviously, under Miranda, when a suspect asserts his Fifth Amendment rights, all police questioning must cease. But it doesn't stop. The officer responds, "Plead the Fifth? What’s that?" The officer continues the questioning and the suspect's subsequent answers become the basis of a conviction.

Well the conviction is being appealed to the 9th Circuit on Fifth Amendment grounds, and that's exactly what the police are arguing - the phrase "I plead the Fifth" is insufficient to invoke the right to remain silent because it is too ambiguous. The very witty Howard Bashman over at How Appealing notes that the term Fifth can apply equally to vodka and Beethoven as well as the Bill of Rights.

What cop in the country honestly doesn't understand what that means? What person who has ever seen "Law and Order" doesn't know what that means? Seriously, don't pee on my leg and tell me it's raining. In fact, don't pee on my leg at all. Please. It leaves a stain. And it's gross.

Fortunately, the full Ninth Circuit bench agreed with the defendant common sense and has granted a habeas petition. The majority wrote: "This is not a case where the officers or the court were left scratching their heads as to what [the suspect] meant. Nothing was ambiguous about the statement 'I plead the Fifth.' Ambiguity means 'admitting more than one interpretation or reference' or 'having a double meaning or reference.' The New Shorter Oxford English Dictionary (1993)."

Even the late Chief Justice Rehnquist, who dissented in several cases in Miranda progeny recognized the importance that Fifth Amendment self-incrimination rights have achieved. In voting to reaffirm Miranda in Dickerson v. U.S., Rehnquist writes: "Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture."

These cops should have known better. They were trying to do an end-around the Constitution, and I'm surprised this case had to go all the way to the full Ninth Circuit to reach this self-evident conclusion.

Pitchers and Catchers Report Today!

It is altogether fitting and proper that the day after Valentine's Day is also a day of love...for baseball fans. Pitchers and catchers report to Spring Training today, meaning there are only 44 days until Opening Day.

As a native Washingtonian, my favorite team is the Nationals, the team with the worst odds to win the World Series (Vegas says we are a 200 to 1 underdog). I don't think we will win the World Series, but I firmly believe the Nationals will impress people this year. I am going to predict a record of 78-84, putting us third in the NL East. I will revisit this prediction at the end of the season.

Also, this marks the Dicta's 200th post! As the kids like to say, w00t! It only took us 5 1/2 months to write posts 101-200, whereas writing posts 1-100 took almost two years.

N.B. I will not be posting quite as frequently, as I have (temporarily) taken on additional job duties. Being asked to work while at work? What a stupid idea! When am I supposed to pontificate?

A Standard of Review too Far

Of course, no matter how fabulous and brilliant I am, this post is going to piss you off. Why?

It's about abortion. (cue heavy dramatic music).

So, I've been thinking, what's a way to reconcile the moral claims of both sides of the abortion debate within our current legal framework. I'm not necessarily interested in doing this, but it's a way for me to avoid homework and still claim I'm learning some law.

So, the problem with the abortion debate is that the two sides are claiming conflicting rights - one, a right to bodily integrity and autonomy at the expense of a life; the other, a right to life and existence and the expense of personal control of the body. If we acknowledge one of these rights, it is indisputably a fundamental liberty. Thus, the way abortion jurisprudence has worked so far is that we stop just short of fully acknowledging either right, and thus ride a tightrope between the two that always threatens to knock us off due to high political winds.

But what if, instead, we simply fully acknowledged both rights? And subjected them both to strict scrutiny, as we do in any other substantive due process case? Thus, new restrictions on the right to HAVE an abortion would be subject to strict scrutiny, as burdens on the right to personal autonomy; and new laws EASING restrictions on abortion would be subject to strict scrutiny, as burdens on the right to exist. I'm not sure exactly how this would play out and what implications there would be in terms of predictability of decisions - but it's certainly an interesting concept. I'm unsure if existing law would be effected, but let's say it is.

For example, could current laws making it a crime to transport a minor across state lines for an abortion (assuming such actually exist - no research in this post!) be invalidated as not withstanding strict scrutiny? I'm not sure that a state has a compelling interest in preventing the performance of abortions in other states on their citizens.

Another example: could a state be required to put restrictions on abortion so that its easy access withstands strict scrutiny? I don't know what the compelling interest in "no restrictions" would be - but I'm certain it's the least restrictive alternative.

Ultimately, I'm really concerned about a larger issue - when two fundamental liberties bump against each other, how do you decide which one prevails? If, say, I want to read to the press corps outside the court trying me for murder my manifesto, but no reasonable attorney would allow me to do so, can I claim ineffective assistance of counsel for letting me exercise my right to free speech? Of course, I'm sure that issue or one like it has been litigated - I'm not interested in the actual outcome? The question for me is should I be able to claim ineffective assistance of counsel under those circumstances? Two fundamental liberties are in conflict - which one wins out?

This isn't really a terribly interesting question outside the context of abortion - because no one's entirely sure just how fundamental the liberties involved in abortion are. We're unsure of why and how a restriction on abortion is or isn't constitutional. For all its flaws, Roe at least gave us the gift of predictability. Right now, it seems that this issue boils down to "Anthony Kennedy's indigestion." If his gut pulls him one way, he rules one way; if his gut pulls him the other, lights out.

Yet more proof that lawyers would be better off if G-d and His servants would just stop trying to make law. I know my life would be easier if there wasn't anyone who was trying to either explicitly make this country a theocracy and/or impose what they think of as "values" on everyone else in the country.

So, yeah - this experiment didn't actually resolve anything - but it was fun and silly. Except when suddenly Justice Kennedy quotes me five years down the road....

Oh crap.

Best headline ever: Can a Sandwich Be Slandered?

I was planning on writing about this a couple weeks ago, but I got distracted. But considering today is the 12th anniversary of the CDA, I revived the post.

In 2006, Quiznos created a contest encouraging ordinary people to record home video commercials of why Quiznos is better than Subway. Sounds harmless enough, right? Wrong:

Subway promptly sued Quiznos and iFilm, the Web site owned by Viacom that ran the contest, saying that many of the homemade videos made false claims and depicted its brand in a derogatory way. Subway is also objecting to ads that Quiznos itself created, showing people on the street choosing Quiznos over Subway.

The dispute over an ad is fairly standard — companies often sue one another over advertising claims — but the video contest raises a novel legal question: Quiznos did not make the insulting submissions, so should it be held liable for user-generated content created at its behest?

Hmmmm...Subway might have a point here. It sounds like Quiznos is outsourcing its commercials to third parties in order to avoid responsibility for the users' content. Plus it has the advantage of being novel and low-cost.

If Subway prevails, it could be the death knell for future advertising contests across all industries. So how have Subway sandwiches been slandered by YouTube geeks

Among the videos that can still be seen on YouTube, one shows a wife arriving home with a Quiznos sandwich for her husband and a Subway sandwich for her dog. In another, a young man runs through town to find a sandwich, passing by seven Subway stores before he reaches a Quiznos and goes in. In a third, two men punt sandwiches across a parking lot; the Subway one soars high but the Quiznos one is so heavy that the man falls over when he kicks it.

Now it seems like Subway is just being silly. Advertisers take creative license in comparing products all the time. That's not false advertising. Although given how ridicolous Internet videos can be, it wouldn't be a stretch for a user to create buzz around a "Subway Causes Cancer" advertising campaing. That would be false advertising (I hope). So the legal issues come down to this:

The Subway/Quiznos case hinges on how the District Court of Connecticut interprets two federal laws: the Lanham Act, which dates to the 1940s and centers on trademark rights, and the Communications Decency Act, which was passed in 1996 to safeguard the Internet. Last spring, Quiznos and iFilm tried to claim they should not be liable for user-generated content because of the Communications Decency Act, which immunizes “providers” of “interactive computer services” from responsibility for user postings on their sites.

Yikes, the CDA. I knew it dealt with Internet porn, but it regulates fast food, too? I'll keep my eye on this case. But for now, I need a sandwich.

Chief Justice Akhil Reed Amar?

It's going to come true....if Mike Gravel is elected president. Before you point out that Gravel will never win the election, please consider that biologists are making huge progress in cross breeding birds with pigs.

According to today's Yale Daily News:

In a recent interview with the News after speaking to students at Phillips Exeter Academy in Exeter, N.H., Gravel said Amar would not only be his first choice to serve on the high court but also his first choice for the position of chief justice, should the post become vacant. “I’d appoint him in a heartbeat,” Gravel declared. “There’s no one who knows the Constitution better than he does.” Gravel called himself a huge fan of Amar’s 2005 book, “America’s Constitution: A Biography.” And the one-time legislator said he was so smitten with the popular law school professor that he went out of his way to gauge whether Amar would be interested in a spot on the nation’s highest court — provided, of course, Gravel became president.

I have a number of observations. First, I haven't heard from Mike Gravel in months. It's good to know that he is still alive. Voters in early primary states haven't noticed him either. In the CT primary, he got one one-thousandth of the vote. FYI, I got zero one-thousandths of the vote in the CT primary, so I am neck and neck with Mike Gravel.

Second, I think this might be the only sane thing that Sen. Crazypants has said this entire campaign (he supports a national sales tax and decriminalizing marijuana). Professor Amar might be an unorthodox choice for chief justice, but I think it might be a very good one. For the record, Professor Amar said he is not interested in the job.

Finally, a recent interview? Either this student journalist was too lazy to write this story in a timely fashion, or if it is really a recent story, no one has told Mike Gravel that the New Hampshire primaries have come and gone. Sadly the second explanation might be more plausible.

Retarded state legislation: New Mexico edition

As Justice Brandeis said, state legislatures are the "laboratories of democracy." Well in some cases, a well-intentioned laboratory can produce a Frankenstein monster. Or, more precisely, a mechanical roadrunner.

Confused? Read on:

SENATE MEMORIAL 40

DESIGNATING THE NEW MEXICO INSTITUTE OF MINING AND TECHNOLOGY AS THE HOME OF THE MECHANICAL ROADRUNNER.

WHEREAS, the world-renowned Wile E. Coyote (road-runner digestus) has endeavored in countless attempts to apprehend the roadrunner; and

WHEREAS, the roadrunner (hot rodicus supersonica) is the state bird of the great state of New Mexico; and

WHEREAS, the hungry Wile E. Coyote continues to chase the roadrunner across southwestern highways equipped with tools exclusively provided by the Acme corporation, which is clearly not a New Mexico-based company; and

WHEREAS, although Wile E. Coyote's attempts to catch and devour the noble roadrunner always fail, they constitute an intolerable assault on a bird that is held dearly in the hearts and minds of the people of this state; and

WHEREAS, the New Mexico institute of mining and technology (smartius pantsius universitatus) is famous throughout the world in engineering and science; and

WHEREAS, the president of the university, Dr. Daniel H. Lopez (largus bossaloticus), always pulls for the underdog, or under-coyote, in this case; and

WHEREAS, the New Mexico institute of mining and technology is the perfect venue to design, test and manufacture a mechanical roadrunner that will continue to evade this vicious, although perennially unsuccessful, predator, while at the same time sparing our state bird from the indignities of constant harassment; and

WHEREAS, since cockfighting has been outlawed, these attacks on our state bird are no longer culturally appropriate;

NOW, THEREFORE, BE IT RESOLVED BY THE SENATE OF THE STATE OF NEW MEXICO that the New Mexico institute of mining and technology be designated as the home of the mechanical roadrunner, and that all resources necessary to accomplish this lofty goal be appropriated for the college of engineering's use; and

BE IT FURTHER RESOLVED that this mechanical roadrunner must meet or exceed the demanding standards of the New Mexico institute of mining and technology, while using only green or red chile as a power source; and

BE IT FURTHER RESOLVED that New Mexico institute of mining and technology students and faculty, confident in their ability to test explosives, shall in one fell swoop accomplish what the misguided coyote could not; and

BE IT FURTHER RESOLVED that the New Mexico institute of mining and technology's admissions standards are too high to accept the coyote for enrollment; and

BE IT FURTHER RESOLVED that this is an endeavor worthy of affixing the great seal of the state of New Mexico; and

BE IT FURTHER RESOLVED that copies of this memorial be transmitted to the board of regents of New Mexico institute of mining and technology in lieu of the board of directors of the Acme company.

*N.B. The above is the actual copy of the resolution. All snarky content is the property of the author and did not originate from this blogger. That being said, here are my snarky comments:

• Would it be that much trouble to capitalize the Institute of Mining and Technology? Unless, of course, the institute is funded by k.d. lang.
• The roadrunner might sound like a silly choice for official state bird, but it sure beats the official state bird of New York, which, of course is a hand gesture.
• Whiskey. Tango. Foxtrot? If the roadrunner always escapes, why bother building a mechanical one? You would be denying the real roadrunner of the television coverage it deserves.
• How much tequila does a legislator have to drink before 1) coming up with this idea, 2) drafting it, and 3) dropping it in the hopper? Hopefully after he dropped the resolution in the hopper, this legislator did not use the hopper as a vomit station. Although in a metaphorical sense, he did use the hopper as a vomit station by submitting this stinker.

Happy Black History Month

From a Walgreen's in San Francisco. It's real, I swear.

The Highest Court in the Land

This is a short story I found recently which explains how the greatest cases in modern Supreme Court have been decided. Here's a brief excerpt:

Everything you were taught about the Supreme Court and its decisions is bunk. For most of the nineteenth century and all of the twentieth, our biggest, most far-reaching legal decisions have been decided not by careful examination of facts and reference to precedent but by contests of game and sport between the justices. The games varied through the years - cribbage, chess, horseshoes, darts - even a brief, disastrous flirtation with polo. (Now do you understand Plessy v. Ferguson?) But ever since 1923, basketball has been the only game...Basketball has shaped the way our society is today, every countour, every legality, every way that one person relates to another in an official, sanctioned sense.

The full story is available in PDF format here. Please take the time to read it. It is hilarious!