Lecture presented by Marshall DeRosa at the Ludwig von Mises Institute’s “Reassessing the Presidency” seminar. This lecture series addresses the much neglected reality that the executive department of the U.S. government has always been the sum total of the American welfare-warfare state. Event held at the Mises Institute in Auburn, Alabama, October 16-17, 1998. http://mises.orgDetails
In yet another indication that ObamaCare must be repealed, a federal judge ruled last week that a challenge to the healthcare “law” filed by the state of Oklahoma may proceed.
According to a report in the Washington Times, the suit filed by the Sooner State “claims the federal government is unlawfully extending tax credits to states that opted not to set up their own insurance exchanges under the new health care law.”
In his order, U.S. District Court Judge Ronald A. White refused to rule on the merits of the case, but simply permitted the challenge to proceed along the path of adjudication.
Although not all of the state’s assertions were accepted by White, among those that the judge did sign off on was the claim that the state as an employer would be harmed by the administration’s application of various provisions in the Affordable Care Act (ACA).
Specifically, Oklahoma Attorney General Scott Pruitt argues that President Obama is permitting federal healthcare agencies to ignore the letter of the law in order to benefit the federal government. The Washington Times explains the government’s alleged errant interpretation:Details
originally posted at The New American
The National Security Agency was forced to de-classify a document, the contents of which make it easy to see why the snoops wanted it kept secret.
In an 85-page ruling handed down by Foreign Intelligence Surveillance Court (commonly known as the FISA court) judge John D. Bates, the NSA was called out “for repeatedly misleading the court that oversees its surveillance on domestic soil, including a program that is collecting tens of thousands of domestic e-mails and other Internet communications of Americans each year,” the New York Times reported on Thursday.
Bates found that the NSA routinely misled the court as to the scope of its domestic surveillance activities.
“The court is troubled that the government’s revelations regarding N.S.A.’s acquisition of Internet transactions mark the third instance in less than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection program,” former FISA court chief judge Bates wrote in his ruling.
Most of the secret NSA programs recently brought to light by the Edward Snowden leaks are mentioned by Bates as being evidence of the NSA’s blatant disregard for the Constitution and for legal limits on its surveillance authority.Details
by Amanda Frost, SCOTUSblog
Bond v. United States is back before the U.S. Supreme Court, and this time it raises a question that has long interested academics: What are the limits on Congress’s power to implement treaties? Missouri v. Holland, decided in 1920, held that Congress could enact legislation implementing a treaty even if such legislation was otherwise outside the scope of its Article I, Section 8 authority. The decision is now canonical, and it has been widely accepted by most academics and followed by courts. Then, in a 2005 article in the Harvard Law Review, Professor Nicholas Quinn Rosenkranz challenged Missouri v. Holland’s rationale and asserted that it should be overruled. His arguments are now front and center before the Court in Bond.
The facts of Bond are unusually colorful. After Carol Anne Bond’s husband had an affair, Mrs. Bond sought revenge by sprinkling toxic chemicals around the car and mailbox owned by the woman involved. Prosecutors charged her with violating a federal statute implementing the Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on their Destruction (also known as the “Chemical Weapons Convention”), to which the United States is a signatory. Mrs. Bond argued that Congress lacked the authority to criminalize her conduct, asserting that the statute is a “massive and unjustifiable expansion of federal law enforcement into state-regulated domain.”Details
Three fallacies articulated by Chief Justice Charles Evans Hughes in his article The Court and Constitutional Interpretation, and promoted by the judges, lawyers and others who desire a national government with unlimited powers at the expense of the states and the people are quoted below.
I’ll address each judicial fallacy in turn starting with –
“The Constitution of the United States is a carefully balanced document. It is designed to provide for a national government sufficiently strong and flexible to meet the needs of the republic, yet sufficiently limited and just to protect the guaranteed rights of citizens; it permits a balance between society’s need for order and the individual’s right to freedom. To assure these ends, the Framers of the Constitution created three independent and coequal branches of government. That this Constitution has provided continuous democratic government through the periodic stresses of more than two centuries illustrates the genius of the American system of government.” (Emphasis added)
Judicial independence implies freedom from interference or control by either the legislative or the executive branch of the federal government. However, nothing could be further that the truth – constitutionally if not in reality. The powers of the Supreme Court and the lesser courts may be enumerated in the Constitution, but makeup, number and members are determined by the legislative branch with nominations coming from the executive.Details
A quick reading of the decision in Dred Scott v. Sanford (1857) should cause any reasonable person to question the assumption of judicial infallibility, and the wisdom of granting judges the definitive and final say in all cases. In essence, the Supreme Court declared black people inferior and that even free blacks were not citizens under the Constitution. In the majority opinion, Chief Justice Roger Taney argued that the framers of the Constitution held blacks were, “beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect.”Details
The Second Circuit Court of Appeals recently rejected a challenge to the sections of the National Defense Authorization Act (NDAA) that could allow for indefinite military detention of those who are suspected of substantially supporting terrorism.Details
by Jon Roland, Constitution Society
The Boston bombing suspect Dzhokhar Tsarnaev has been charged with multiple federal offenses, but none of them are authorized by the U.S. Constitution for offenses committed on state territory, as the acts in Boston were. If the federal courts were constitutionally compliant, they would be compelled to dismiss them all, and let the State of Massachusetts prosecute him under its laws.
The following is a summary of the main federal charges:
- Use of a weapon of mass destruction resulting in death and conspiracy.
- Bombing of a place of public use resulting in death and conspiracy.
- Malicious destruction of property resulting in death and conspiracy.
- Use of a firearm during and in relation to a crime of violence.
- Use of a firearm during and in relation to a crime of violence causing death.
- Carjacking resulting in serious bodily injury.
- Interference with commerce by threats or violence.
- Aiding and abetting.
Contrast this with the following, taken from the second of the unanimous Kentucky Resolutions of 1798, written by Thomas Jefferson, summarizing original understanding of the U.S. Constitution:Details
The Second Circuit has permanently vacated the injunction issued by the District Court against NDAA 2012 indefinite detention powers. The case has been remanded to District Court Judge Kathryn Forrest. who originally issued the injunction.
In layman’s terms, Forrest put a stop to indefinite detention, and the Second Circuit overturned that. It also permanently prohibited Forrest from attempting to do so again, ordering her to proceed with the case consistent with their opinion.
NDAA “indefinite detention” powers are alive and well.
The opinion appears to be based only on lack of standing — based on the Clapper case decided by the Supreme Court:
“In sum, Hedges and O’Brien do not have Article III standing to challenge the statute because Section 1021 simply says nothing about the government’s authority to detain citizens. While Section 1021 does have meaningful effect regarding the authority to detain individuals who are not citizens or lawful resident aliens and are apprehended abroad, Jonsdottir and Wargalla have not established standing on this record. We VACATE the permanent injunction and REMAND for further proceedings consistent with this opinion.” P. 60
The Tenth Amendment Center, along with a broad coalition of organizations and individuals, filed an amicus brief on behalf of the defendants. It was cited at p. 4 and note 3 in the District Court’s opinion:
As one group of amici has noted, “[r]arely has a short statute been subject to more radically different interpretations than Section 1021.”
The only other reference to an amicus brief was at p. 40, in note 137 — Center for National Security Studies.
REVIEWING THE “LAW” IN QUESTIONDetails
The Supreme Court just released its opinion on DOMA, and Prop 8. The justices showed some rare wisdom here, and even applied the Constitution in ways I never expected them to. I suppose, just when you are certain of the utter uselessness of an organization, they can perform one righteous act to make a liar out of you.
First let me explain what the Constitutional position of the federal government should be on marriage.
It’s that simple. Marriage is not mentioned once in the Constitution. It is not related to an enumerated power, and as a religious institution, it is arguably forbidden for the feds to pass laws concerning it under the First Amendment.
But, I will allow one disclaimer to this position: the full faith and credit clause in Article4:
“Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.”
Both gay rights activists and traditional marriage protectionists rely upon this clause to make the claim that America must either embrace or ban the practice of gay marriage across the nation. This fight comes down to contract rights. Gay marriage proponents ask: if marriage is a contract drawn up in one state, why is another state not bound to enforce it? This is the same argument slave owners used to force the northern states to return runaway slaves during the ante-bellum American period.Details