Archive for February, 2013

Immigration is the single largest example of this Administration’s lawlessness, and one that hurts states, and their citizens because of the Administration’s crass and cynical belief that it can cash in on votes if it decides that these laws aren’t worth enforcing.  This was demonstrated when Arizona, a state on the front line of the ongoing “soft invasion” (touted by “civil rights” groups like Mecha, which view this “reconquista” of “Aztlan” as a legitimate end) passed the notorious SB 70, which mirrored existing Federal immigration law, drawing attention to a huge problem being created by uneven enforcement/lack of border and immigration enforcement in border states. 

Rather than addressing the problem by actually starting to enforce or vigorously enforcing borders and the immigration laws, the administration, through its top legal official, Attorney General Eric Holder, took it upon itself to instead sue the state of Arizona, claiming that Arizona could not enforce the law that the Administration clearly would not, based on the idea of Federal preemption.  This rather absurd notion was made more absurd by the fact that the state actually DID have a role in enforcing the law as it existed.  This was an extraordinary moment in American Politics.  Never before had an Administration so brazenly made an argument that could be succinctly stated as “We cannot have the states telling us to actually do our jobs, and enforce the laws regarding immigration.”

While it certainly implicates issues of Federalism, it is the rhetorical equivalent of poking oneself in the eye with a fork.  Many of the loudest voices of support of the Administration on this matter also support the concept of “Sanctuary Cities”, where municipal government service providers and law enforcement are not allowed to investigate the immigration status of individuals in their care or custody, and actually would find themselves in legal trouble and more than likely jobless if they were to do so.  Federalism is cited as support for this policy.   Only to those contemptuous of the law, could the notion that Federalism allows local governments to purposely ignore immigration law, but doesn’t allow a state to enforce it when it is being harmed by the failure of the Federal government (which has primary and Constitutional authority to do so, but has also delegated much of its powers of enforcement to state and local government) to do so.

Not content to simply poke its thumb in the eye of states looking to protect their borders when the federal government has blatantly abdicated its duty to do so, the Administration kicked it up a notch when the President announced that his administration would stop deporting certain classes of illegal immigrants.  Some Obama apologists suggested that the announcement was little more than an exercise of prosecutorial discretion.  This is of course simply crap, because while those in charge of prosecution do have the authority to prioritize their activities, this does not enable them to selectively enforce the law, especially when doing so directly and indirectly harms “the governed” to whom they report.  Nor does the excuse that the government has limited resources with which to prosecute the offense make sense…not when there is apparently no limit on Federal spending for numerous activities which it isn’t specifically authorized to do, and when there is obviously no limit on what the taxpayer can be expected to spend for the leisure time of the President and his family

What makes this “there are simply too many of them here to enforce the law” argument so offensively wrong is the fact that the Federal government only has a small list of specifically enumerated jobs, and among them is defense of the nation.  You cannot say that this duty has been adequately performed if you do not have control of the border.  Given the fact that there is no lack of money for any number of things that the Federal government has absolutely no business doing, perhaps it’s long past due for Congress and the President to stop trying to buy votes from people who don’t think enough of our laws to actually follow them, and focus their attention on doing the duties that “We the People” actually assigned to them.  Yes, it’s harder to create a constantly underachieving dependent class when they spend our money on the things they are actually supposed to be doing, but given how much the average taxpayer has had to reprioritize their personal spending so that the Federal government can carelessly redistribute what they make, it really isn’t too much to ask.

This contempt of the law wasn’t enough for the Administration.  They had to turn it up to 11.  How?  By bringing illegal aliens to the State of the Union speech.  After all, nothing says “We respect the law we’re charged with making and enforcing.” like when 3 Representatives, a Senator, and the First Lady all bring someone who openly breaking the law to hear the President address both houses of Congress and the nation.  Especially since the rules of the House Sergeant-At-Arms require those who don’t have a Congressional ID to produce a valid Social Security Number, among other identifying information.  But I guess that it shouldn’t be surprising that they treat the seat of national government like they treat the national border.  And besides, some of these “guests” in our country who really, really, really want to be here don’t like being reminded of their willingness to remain here, breaking our laws, while they demand we make it easier for them to be US Citizens.  Or something.  But in answer to your question, Senor Vargas, “What do you want to do with us?” I want you to have enough respect for our laws to go through the proper steps to gain the privileges of citizenship.  If it is worth having, than it is worth not letting you, or anyone else steal.  Nor should those responsible to enforce the law give away the benefits without making sure the responsibilities go with them.

And as all great salesmen will tell you, “But wait, there’s more!” Lawless, Part III is coming.

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“Law is order in liberty; and without order, liberty is social chaos.”

-Archbishop Ireland

If you decide to move to another country and live within its laws you don’t express a disregard of the essence of its culture.  It’s a form of aggression.” 

-V.S. Naipaul

“Whatever government is not a government of laws, is a despotism, let it be called what it may.” 

-Daniel Webster

Tyrants have always some slight shade of virtue; they support the laws before they destroy them.”


“If the president does it, that means it’s not illegal.”

-Richard M. Nixon

“This is something I’ve struggled with throughout my presidency.  The problem is that I’m the president of the United States, I’m not the emperor of the United States. My job is to execute laws that are passed.”

  -Barack Hussein Obama

“The sovereign is called a tyrant who knows no laws but his caprice.” 


“If we resort to lawlessness, the only thing we can hope for is civil war, untold bloodshed, and the end of our dreams.” 

-Archie Lee Moore

Barack Obama has long uttered self-congratulatory rhetoric about his administration being “Historic” and “Unprecedented”, which for the most part is true, but not for the reasons he likes to feel good about while taking one of his historic and unprecedented number of lavish vacations on our dime.  Never has an administration ever been more contemptuous of the law as this one.

Article II, Section 3 of the Constitution requires of the President that ” he shall take Care that the Laws be faithfully executed,”, and yet this self-styled “Constitutional Scholar” has failed to exercise a basic and fundamental duty of the President as assigned by law.

31 U.S.C. 1105 (a) states:

On or after the first Monday in January but not later than the first Monday in February of each year, the President shall submit a budget of the United States Government for the following fiscal year. Each budget shall include a budget message and summary and supporting information. The President shall include in each budget the following:

The law has required the President to submit a budget since The Budget and Accounting Act of 1921, which might raise the possibility that this law is somehow racist, but seeing as how we did not have a black President until the election of William Jefferson Clinton in 1992, I think we can safely discount this possibility, and Obama’s many apologists will have to find a different excuse for his failure to perform this legal requirement of office all but one year of his tenure.

I find his failure to do so somewhat puzzling, as he lamented how the Constitution operates as “a charter of negative liberties” that constrains the federal government, rather than empowers it. (How the fact that this is a feature and not a bug has managed to evade such a distinguished Constitutional scholar surely is a mystery for the ages, along with how he has so far managed to not recognize that the Declaration of Independence was the charter, and that the Constitution was the bylaws.  Maybe he was too busy with his duties leading the Harvard Law Review to pay attention that semester.)  Surely for someone who bristles as much as he appears to at the idea of what he is not permitted to do, the thought of being able to propose and submit a budget would be a remarkable opportunity.  Alas, this is obviously not the case.  Apparently budgets are for little presidents…the ones who don’t promise “fundamental change”.

However, this is not an end to President Obama’s casual disregard for the law (or at least the ones he doesn’t like).  His administration’s role in the GM and Chrysler bankruptcies lead to events which flipped the bird to long-standing bankruptcy law, and destroyed longstanding principles underlying secured transactions and principles of commercial credit.

But it wasn’t long before these hopes were dashed by the government’s management of the process. Instead of a regular bankruptcy proceeding, the Obama administration, working with the automakers, patched together a process without precedent — a bankruptcy combined with a bailout, incorporating the worst elements of both.

Of the two proceedings, Chrysler’s was clearly the more egregious. In the years leading up to the economic crisis, Chrysler had been unable to acquire routine financing and so had been forced to turn to so-called secured debt in order to fund its operations. Secured debt takes first priority in payment; it is also typically preserved during bankruptcy under what is referred to as the “absolute priority” rule — since the lender of secured debt offers a loan to a troubled borrower only because he is guaranteed first repayment when the loan is up. In the Chrysler case, however, creditors who held the company’s secured bonds were steamrolled into accepting 29 cents on the dollar for their loans. Meanwhile, the underfunded pension plans of the United Auto Workers — unsecured creditors, but possessed of better political connections — received more than 40 cents on the dollar.

Moreover, in a typical bankruptcy case in which a secured creditor is not paid in full, he is entitled to a “deficiency claim” — the terms of which keep the bankrupt company liable for a portion of the unpaid debt. In both the Chrysler and GM bankruptcies, however, no deficiency claims were awarded to the wronged creditors. Were bankruptcy experts to comb through American history, they would be hard-pressed to identify any bankruptcy case with similar terms.

To make matters worse, both bankruptcies were orchestrated as so-called “section 363” sales. This meant that essentially all the assets of “old Chrysler” were sold to “new Chrysler” (and “old GM” to “new GM”), and were pushed through in a rush. These sales violated the longstanding bankruptcy principle that an asset sale should not be functionally equivalent to a plan of re-organization for an entire company — what bankruptcy lawyers call a “sub rosa plan.” The reason is that the re-organization process offers all creditors the right to vote on the proposed plan as well as a chance to offer competing re-organization plans, while an asset sale can be carried out without such a vote.

But this was not the end of The President’s disrespect of the law.  He also took it upon himself to disregard the notion of separation of powers and determine for himself when the Senate was in recess, so he could appoint, without their certain rejection, appointees that would not be consented to by the Senate.

Article II, Section 2 of the Constitution states:

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

This specifically does not give the President the right to determine when the Senate is in recess, as each house, and each house alone, is responsible for determining the rules of its proceedings, as set forth in Article I, Section 5 of the Constitution.

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

Yet the President felt compelled to take it upon himself to determine that the Senate was in recess, despite the Senate assertions otherwise, so as to effect appointments of officials without the Senate’s advice and consent.  First in the case of Richard Cordray, to lead his new Consumer Financial Protection Bureau, and then Sharon Block and Richard Griffin to the National Labor Relations Board.  While Obama apologists propose that it was the Senate violating the Constitution by conducting pro-forma sessions, that appeared to have no other purpose other than blocking the President’s ability to make recess appointments, the fact remains that the Constitution unequivocally gives the Senate the authority to make its own rules.

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two-thirds, expel a Member.

This means that the President did not have any lawful remedy to his complaint other than a resort to the Courts, for a ruling on whether or not the Senate’s actions comported with the Constitution. (And it is quite likely that the courts would have deferred to the Senate’s judgement by finding the action to be in the nature of a “political question”, which until Bush v. Gore, the courts have long decided by not making any decision whatsoever.) Once again, the President is the one who acted in an unlawful manner…a concept clearly not driven home to the administration, based on this ludicrous assertion by Administration Spokesclown Jay Carney:

Carney insisted the ruling was narrow to “one case, one company, one court.”

Carney attends Teh Peepuls Skool of Law N Stuf, which makes him uniquely qualified to state this rather remarkable assertion. At least I hope so, because his Wiki bio states that he has a B.A. in Russian and Eastern European Studies from Yale University.  I find it interesting that his boss is not as certain, as he has quietly resubmitted two of the not-recess appointed official’s names for confirmation by the Senate.

Sadly, this is not the full extent of this administration’s lawlessness, which will be demonstrated in Part II.

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Sometimes, I look at what posts are being read, and re-read them myself.

I did that today with this post, and came across this comment:

That is a serious question – would we as a nation, right now, recognize an honorable politician if we met one – a leader who might be accepted by all of the people as an honorable man or woman? Would it even be possible, in this age of attack advertising and hyperpartisanship, to see integrity when it is in front of us? It would be ironic, would it not, if Diogenes found the honest man but didn’t realize he had done so?

Sadly, Hippieprof passed away before the last election, but in reviewing his remarks, I’m not sure he would have truly understood that, much to all our detriment, his question was answered.

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“How You Like Me Now?”

I confess, I was having a hard time getting too worked up over the leaked DOJ White Paper describing the legality of the Administration policy for assassinating American citizens abroad who are supposedly actively working against our interests. But then I was asked by a serious person I take seriously to write about it “from a lawyer’s perspective”.

So I read it, and I find myself in what seems to me to be an odd place with regard to it: opposing another lawyer who I respect a lot…Mark Levin. Earlier this week, I was listening to Mr. Levin when I was driving home from work, and he was talking about how he thinks that the media that is actually talking about it (as the usual suspects have been expectedly silent on the matter) is wrong, and that as a Constitutional scholar, he has no problem with it. As I listened with a measure of surprise to him talking about it, I wondered what it was that was in the white paper that left him so unconcerned about it (because I hadn’t yet read it). My takeaway was that the conservative media’s opinion on it tries to take war off the battlefield and put it in the courtroom, which is what we expect the left to do, with the abortive attempt to give Kalid Sheik Mohammed a civilian trial, and to have civilian proceedings for GITMO detainees as well, and because these al-Qa’ida leaders, US Citizens or not, are trying to kill us.

I remain unconvinced, largely because in this case, Mr. Levin is wrong. (And with this statement, my chance to ever have him sign my copies of Men In Black, and Liberty and Tyranny go straight down the toilet.) And someone needs to say so, even if he is unlikely to take notice, or care.

Why is the estimable Mr. Levin wrong?  I’m glad you asked.

First, the KSM trial, and a lot of GITMO detainees are NOT citizens.  I know it has been Demcong policy for decades to devalue the worth of citizenship, spearheaded by their constant attempts to give away many of the benefits to those who have not earned it, or made any attempt to lawfully attain it, and bolstered by their constant cultural attempts to balkanize us with “identity politics” and the inevitable hyphens that accompany it, and their moral relativism, which stubbornly maintains that there is nothing exceptional about being American, and there is nothing that makes our culture better than anyone else’s, despite the sometimes frantic attempts people from other nations will make to come here, and live and breathe FREE.  But if the essence of American conservatism is an appreciation of the freedoms we have guaranteed to us, then it also means that citizenship means something. 

This isn’t a new idea, and it isn’t even a uniquely American idea.  In the Bible, the Apostle Paul was a Roman citizen.  His ministry was offensive to Rome, and in some cases, breached the Pax Romana…an offense worthy of death for those who weren’t citizens.  But in Paul’s case, it meant that he had rights that not every person who lived in the Roman Empire had.  Among those were the right of a citizen to not be summarily executed on the authority of a government functionary.  And today, nations recognize that citizenship affords rights and privileges, and these are not casually given away to those who do not have that status.  Heck, even Mexico treats its citizens much differently than non-citizens.  Don’t believe me?  Try to sneak into their country along their southern border.  Accepting the idea that any citizen can be targeted for assassination on the say so of the President, or “an informed, high-level official of the U.S. government”, even within the framework of the test set forth in the White Paper is unacceptable because it further cheapens the concept of citizenship.

Mr. Levin is also wrong with his argument that to oppose the practice and adhere to the idea of due process is trying to drag war into the courtroom the same way that leftists would like.  Resistance to an assassination protocol for American citizens is distinguishable from an abortive and ill-conceived attempt to try KSM in Manhattan if for no other reason than KSM is NOT an American citizen, and as such does not have the same due process rights as a citizen.  While there are instances where a representative of the government may end up killing a citizen without due process, those situations are NOT necessarily ones where death of that citizen is the reason why that action is taken.  Suicide by cop doesn’t happen because the cop has marked the citizen for death.  It happens because that citizen (or not, in some cases)  does something to deliberately put someone else in danger, and the police have to act in order to protect the public, or themselves.  A U.S. citizen who is on a battlefield shooting at our forces could likewise expect that they are going to be killed, but again, the difference is that there was not a mission planned and dedicated to the sole purpose of ending that citizen’s life.

The White Paper itself sets forth the following test for determining if it’s ok for our federal government to snuff a U.S. citizen in a foreign country:

“In the view of these interests and practical considerations, the United States would be able to use lethal force against a U.S. citizen, who is located outside the United States and is an operational leader continually planning attacks against U.S. persons and interests, in at least the following circumstances:

(1) where an informed, high-level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States;

(2) where a capture operation would be infeasible—and where those conducting the operation continue to monitor whether a capture operation becomes feasible; and

(3) where such an operation would be conducted with applicable law of war principles.”

Of course, this standard raises all manner of questions that should be asked.  “Who is “an informed, high-level official”?  A Cabinet Officer?  A member of the Joint Chiefs of Staff?  A czar?  The Commissioner of the Internal Revenue Service?  The Senate Majority Leader?  The standard as it is set forth in the White Paper is incredibly nebulous.  The Imminent Threat standard as set forth in the White Paper raises questions as well.  On page 7, the White Paper makes clear that this requirement “does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.”  While this was followed by a somewhat unconvincing argument that such a burden would reduce American defensive options, the explanation really goes off the rails at the end.

(what constitutes an imminent threat “will develop to meet new circumstances and new threats….It must be right that states are able to act in self-defense in circumstances where there is evidence of further imminent attacks by terrorist groups, even if there is no specific evidence of where such an attack will take place or of the precise nature of the attack.).”

Got that?  We use the word “imminent” without defining it, claim self-defense without having to prove what we’re defending against, because we think that people who don’t like us are going to do something bad, somewhere, at some time.  Sure.  That’s certainly enough to allow government to deprive a citizen of their right without due process.

The next question is “Who is it who is monitoring who decides if capture is feasible?”  This is a fair question, if only because this administration has proven to not necessarily be inclined to give much credence to the military’s recommendation on various operation that it has been tasked to accomplish.  I’m not sure that there is much incentive for the “informed, high-level official of the U.S. government” to consider an option that isn’t as easy as using a Predator drone and smoking the citizen.

Finally, if this is “to be conducted with applicable law of war principles”, aren’t we back to bringing the war into the courtroom, just as Mr. Levin wants to avoid?  Hasn’t one of the main arguments against the war in Afghanistan been the rules of engagement that have hampered and even endangered our soldiers?

The White Paper also goes to great lengths to point out that the policy applies to “senior operational leaders of al-Qa’ida or an associated force”.  Who decides who is a senior operational leader?  Who decides what is an associated force?  And why is this process not subject to some kind of oversight?

While the White Paper lays out a legal foundation establishing the legality of this practice sufficient enough to give cover to a Wise Latina Woman or Laney Kagan, I cannot support it, not only for the reasons stated above, but also for the reasons not stated by Mr. Levin, or the authors of the White Paper.

I discussed this for a while with a friend who believes that this policy is just fine, because guys like Al-Zwahiri have “committed treason” against this country, and acted in a fashion that is inconsistent with citizenship by plotting to kill Americans.  My problem with this is that Treason is actually the only crime set forth in the Constitution, and the standard of proof is specifically set forth in the Constitution, in Article 3, Section 3:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

While treason is punishable by death, unless you are killed in the act of committing it, the state may only impose this penalty if you are convicted of it.   While this standard was drafted before the due process requirements of the 5th and 14th Amendments, it comports with them.  And, unless you are a naturalized citizen, a conviction for treason will NOT result in the loss of your citizenship, as only naturalized citizens may be involuntarily stripped of their citizenship.  The only way for a natural-born citizen to lose their citizenship is by renunciation according to 8 U.S.C. 1481(a)(5).

Finally, my last objection is my lack of trust in government.  Government has proven to us time and again that there is no power that it won’t abuse at some point.  And we currently have an executive branch that doesn’t respect the Constitution as it is, whether it is determining for itself whether or not Congress is in recess for the purpose of making appointments, or by brazenly declaring that the President decides who is “entitled” to Second Amendment rights.  I would have trouble trusting a different administration with such a nebulous authority to abrogate basic Constitutional rights, let alone one that believes that the President can determine who is entitled to exercise Constitutional rights.  Citizenship means more than that, or we have allowed them to render it worth little or nothing at all.

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The world is upside down when the people who make the law show so much contempt for it.

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You know you’re in the best of hands when your administration hacks can’t even do their homework before they lie to you.

Don’t even get me started on the way he’s holding the gun or where it is pointed.

It’s nice to know they think so little of our intellect.

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