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Archive for the ‘Rule of Law’ Category

 

Once again, they make stuff up, and do not get called on it, because reporting is hard, and pointing out the lies would get them disinvited from all the right parties.

But the fact is, if we are going to shift (and yes AG Holder, it would be a shift) to an unconditional duty to retreat, have we not surrendered as a society? How is it not a surrender of personal sovereignty? How is it not a surrender of the right of personal property? How is it not a surrender of the right of personal protection? Because if we persist in the belief in the nobility of unconditional retreat, we embolden those who don’t care, and those who take what they want because they have no respect for a legal system that IS inherently unequal because those who act within it will constantly make excuses for their disrespect of it, while holding others to the standards that SHOULD be uniformly applied.

Retreat means that the law makes you a victim first, and seeks to punish you for not wanting to be come a statistic…a cooling body that police stand and make notes over, or someone who his handed a card for a theft/burglary case that the police don’t have resources to adequately investigate, and that prosecutors aren’t interested in actually prosecuting.

The crime here isn’t the surrender, its the acceptance of government’s contention that your reliance on it is noble, and that if (when) it fails to adequately protect you, it is because you haven’t surrendered enough to it. Not enough sovereignty. Not enough privacy. Not enough dignity.

If we don’t tell them “NO!” now, then we will be condemned to a gruesome half-life as thralls to an impossibly corrupt kleptocracy that we continue to indulge to our everlasting shame and at a very real peril.

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So I have some friends who are screaming about Snowden being a traitor. I have friends who are saying he’s a hero.

To my friends saying he’s a traitor: We’ve had an out-of-control, lawless federal government for the last 5 years, that has been allowed to do so without any real consequence. Sooner or later, it was bound to spill over from the top on to the cogs.

To my friends saying he’s a hero: MAYBE letting the cat out of the bag before the election might have made him a “hero”. He didn’t do that. He admitted to holding back because he thought Obama would be better with this stuff than Romney. So the knowledge of the citizenry of it was still subject to someone’s political considerations…his.

But the questions I want to hear asked and answered are:

1. Who, specifically, decided to use the 4th Amendment as toilet paper on this particular subject?

2. Are our intelligence agencies STILL wiping their butts with our privacy rights?

3. Why are we supposed to think that there were “other avenues” for spilling the beans that would actually be effective when Representative Issa has being “gathering” data on Fast and Furious for how many years?

4. How long before the various organs of government shift from tacitly acting on what it they are learning to openly acting on the knowledge?

5. Is NOTHING sacred? Is NOTHING to be retained by the citizens to themselves, but for the thoughts that they do not speak or write, or does the “terrible burden of governing” come with the expectation that the governors must know all in order to “keep us safe”? And if the answer to the last question is “Yes”, then how long before we the people are relieved of the terrible burden of having to make any choices?

I’d like to see some outrage from the likes of John Boener on the intrusion on our liberties, but I guess that was too much to ask.

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As Washington DC stews in the mix of several scandals, several of which demonstrate little or no regard to the rule of law, I’ve been thinking about “What It REALLY Means™”, and as per usual, I expect that my conclusions won’t be very well received.

Consider: 

1.  Ample evidence to suggest not only that the Administration left Ambassador Chris Stevens and 3 other Americans to die in Benghazi, knowing they were under attack, but it participated in crafting deliberate lies then shopped to the American public about that attack on our consulate there.

2.  HHS Secretary Kathy “I never met a baby I didn’t have a plan to kill” Sebelius making phone calls to health care companies…companies that will be regulated by her agency when ObamaCare reaches its full killing potential…to solicit funds to help pay for this usurpation of authority.  From inside her agency.

3.  The IRS conducting targeted harassment and investigations of conservative Americans trying to obtain 501(c)(3) status for their groups.   And the more that is revealed, the more it seems that this harassment intruded on First Amendment rights, and spilled over in the private lives and businesses of some of these individuals.   And in an agency that has regulations for how its agents are supposed to sit at their desk or how they are to drink coffee, those in supervisory positions would have us believe that this was the work of a few improperly supervised low-level employees in just a few offices, despite the growing evidence that it was anything but, and invocations of the Fifth Amendment by those in a position to know better.  Never mind the hundreds of visits to the White House by Commissioner Doug Schulman during this time.  This isn’t the gross and systematic abuse of power you’re looking for.

4.  Eric Holder’s DOJ wiretapping 20 AP phones in an effort to get to the bottom of a leak that revealed what was obvious to anyone who has mocked the North Koreans at any time in the last 20 years.  But he didn’t know anything about it, because he recused himself.  He just can’t say when he did it, he didn’t put it in writing so subordinates could KNOW that he recused himself, and not report to him on the matter, and avoiding this unnecessary and redundant step would be standard operating procedure for an attorney professional enough to be appointed Attorney General of the United States.  If the United States was a banana republic.

5.  Eric Holder’s DOJ made allegations of criminal activity by FOX reporter James Rosen in order to tap his phones, private emails, and those of his parents, too.   But again, AG Holder claims to have recused himself, and that he knows “nussink…NUSSINK” about any of this.  I can only assume that he did this AFTER he signed the documents seeking the warrants.

So to recap, we have an Administration venial enough to let Americans die when they didn’t have to, as there were multiple resources available to mount a rescue mission.  Then this Administration, and the State Department meticulously edit and re-edit the “talking points” until the only thing true in them was that the Ambassador and his 3 companions were killed.  They then picked a State Department flack who had no trouble selling a lie, and sent her out to peddle the story.

Then we have a Cabinet Secretary extorting money from those that she is to be regulating, and doing it on government time, with government resources.

We have the most brutal collection agency on the planet, and the only part of the US Government that gets to proceed under the presumption that you are guilty until you prove your innocence targeting Americans who have a political philosophy that is at odds with the political philosophy of the Administration, while the Commissioner of the IRS is meeting with the White House more than 100 times.

And we have a Department of Justice run by a second-rate attorney and thug who has proven to indulge excess and disregard for the Constitution he is sworn to uphold, who also has no problem perjuring himself when he is asked about it under oath.

So tell me, when you consider all of this, are you so silly to think that government can be entrusted with the decision to kill US Citizens abroad?  I have been thinking about this off and on for about a week now, and I think back to my previous post on the DOJ White Paper that outlined the government’s guidelines for making the decision to kill citizens abroad with drones.

And I specifically considered the test set forth by the DOJ:

“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.”

Given what we’ve heard over the last few weeks, I’m not sure we have a high-level official of the U.S. government who is “informed” about anything.  And the fact that the “test” has a checklist of circumstances isn’t particularly reassuring, seeing as there are laws and rules and regulations that are in place NOW that government officials and employees can’t seem to be bothered with following when doing so would crimp their attempts to advance their ideology.  If there is nothing wrong with using your office to shake down companies and bring the force of the IRS to bear on American citizens trying to exercise their Constitutional rights, then why would any thinking person believe that it would be wrong to indiscriminately target Americans abroad if they were of the wrong political persuasion?  And to all of those who were filled with snark over the delayed answer from Attorney General Holder on the DOJ’s position on the use of drones to kill citizens here at home…it shouldn’t see quite so silly anymore, nor should you be as trusting of his answer as you were before.

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What do you get for the kleptocratic statist who has everything?

Your children.

MSNBC host and whackjob (BIRM) Melissa Harris-Perry wants you to know that we don’t spend enough on education because we just don’t realize that our children belong to everyone.

http://www.mrctv.org/videos/shorter-melissa-harris-perry-all-your-kids-are-belong-us

Of course, when you are aligned with a mindset that thinks it acceptable to kill your own children, it was probably inevitable to look upon other people’s kids as a resource for redistribution.  Afterall, it’s hard work maintaining a culture of filth, stupidity, and subservience when those most in favor of it have fewer children than those who oppose it.  And the idea that we need to pay even more to a system that already is failing and giving us dumb kids is precious.  But than, government is the only place where incompetence, illogical, and failure is rewarded.  The saddest part of this is that the majority of the people on the receiving end of this pitch are the product of …public schools, and will likely accept the opinions of the “experts” on this matter.  All it typically takes is saying that “IT’S FOR THE CHHHHIIIIIIIILLDREN!!!111!!!”

Next, who can forget that classic Obama knee-slapper “I do think that at a certain point, you’ve made enough money.”?

Well, it was probably only a matter of time before our great father Obama would let us know that “At some point, you’ve saved enough money.” too.  And thankfully, under his watch, government is right there to tell us when that is.

From The Hill:

President Obama’s budget, to be released next week, will limit how much wealthy individuals – like Mitt Romney – can keep in IRAs and other retirement accounts.

And remember, comrade, the government has NEVER arbitrarily changed the definition of “wealthy” when there was money to be confiscated taxed.  Like when the 16th Amendment was passed to tax only “the wealthy”.

The proposal would save around $9 billion over a decade, a senior administration official said, while also bringing more fairness to the tax code.

The magic of government accounting…that fantastic world where taking someone else’s earnings, levying a not-insignificant handling charge, then distributing it to some one who didn’t earn it, or spending it on such profound endeavors as alcoholism rates among Chinese hookers, and federally funded sex-education classes for Kindergarteners is “bringing fairness to the tax code”. It should go without saying that what is being “saved” is the government’s ability to buy votes with someone else’s money.

The senior administration official said that wealthy taxpayers can currently “accumulate many millions of dollars in these accounts, substantially more than is needed to fund reasonable levels of retirement saving.”

Ahh, yes. That new benchmark of “fairness”, an arbitrary determination of the OWNER’S “needs”, decided entirely by a government that refuses to live within our means…meaning that it is really talking about ITS needs. (Those lavish vacations and hookers and blow for the Secret Service don’t come cheap, doncha know) While this same mantra has met with limited success among people who refuse take responsibility for their own safety, and don’t want YOU to either, I think it’s safe to say that government’s determination of “need” in this matter will meet with even less success than the drumbeat about not “needing” a Sig or a Glock or an AR for hunting.

Under the plan, a taxpayer’s tax-preferred retirement account, like an IRA, could not finance more than $205,000 per year of retirement – or right around $3 million this year.

I can remember when $250,000 a year was the government’s benchmark for “rich”. Can you?

Romney, Obama’s 2012 opponent, had an IRA several to many times that amount, leading to questions about how the former Massachusetts governor was able to squirrel away so much money in that sort of retirement account.

The problem is not everyone donates money to the President like the heads of Solyndra, Sun Power, and other “green energy” graft schemes. Sometimes, they actually earn it through hard work. And this is why this Administration is clueless about finances. Because it NEVER occurs to them that while you might be limited in annual contributions to IRAs, not all IRAs are simply glorified bank accounts. Some are managed investments, that take risks with the money in order to get increased returns. But again, unless you made your fortune from government or your association with it, all these people see is money that they want.

And for your last thought…

I was eating lunch today and reading about another gun manufacturer that made the decision to leave one of the states that has gone full retard after Sandy Hook and passed blatantly unconstitutional gun “control” laws.  As this had been going on for a few weeks now, I have had a certain measure of amusement in watching this, but then I thought “If I were totalitarian narcissist with delusions of adequacy who chaffed at the restraints that the Constitution necessarily placed on me, and I might want to resort to a desperate ultra vires act against an industry that could be a threat to me realizing my aspirations of power, would I want to have to “seize” facilities scattered across states in all regions of the country, or would I want to only have to concentrate on one region?

Suddenly, it was less amusing than it had been a few minutes before.

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Somewhere between the shampoo and the soap, I was pondering Sheriff Slow Joe Biden’s remarks about the Administration’s current gun control push and the President’s laughable remarks about “shaming” those who oppose further infringements on the right to bear arms by a government that was explicitly prohibited from engaging in the infringements which already exist.

Putting aside the issue of someone spending our money to have his children vacation at lavish resorts in the Bahamas and in Sun Valley when the economy is still in the tank and millions of American families can afford no vacation at all, let alone separate vacations for their children, I couldn’t help but consider that we have hundreds of “gun control” laws on the books now that simply aren’t being enforced.  I realize that our leftist betters who are always considering new ways of justifying the Federal government’s various attempts to circumvent the restrictions that the Constitution clearly places on it would justify these past ineffective measures as tacit decisions by “We the people” to allow the government the authority to infringe where no infringement was allowed.  I can even accept that there may be a measure of truth to this, as some people certainly would have been willing to surrender a measure of liberty for the illusion of security, much in the same way that the frog doesn’t really consider that the water he’s in just got a little hotter.  However, I’m not sure that we should accept the idea that liberty ensured by restrictions on Federal authority can be conceded by means of a “passive” waiver, that is to say, by not enforcing that restriction when a clearly prohibited authority is clearly usurped, when that act of usurpation in and of itself is not so onerous as to warrant an immediate, and vehement denial.  Such a belief cannot be logically defended, and if accepted, would fundamentally change the relationship between “We the people” and our government, and for the same reasons, the Federal government should be equally denied from arguing laches as a defense to any attempt to reassert the restrictions that have never been Constitutionally relaxed or rescinded.

Even the “Constitutional Scholar-In-Chief” understands that the Constitution ensures liberty by restricting what the Federal Government can and cannot do, even if he cannot help but to reveal his bias against that by referring to it by calling it a “charter of negative liberties” and lamenting that it prevents the Federal government from doing certain things for us.  (One of the inherent flaws in this viewpoint being revealed when you consider that when he is talking about “us” he only means some of “us”.)  If we were to accept that infringements that were enacted in another time were now acceptable, and allowed the Federal government the authority to enact even more infringements as long as it could justify them as “reasonable”, then all those who want an all-powerful state have to do is have a strategic long-term plan, and the will to carry it out in a creeping incrementalism over a period of decades in which emotionalism is used to justify the nibbles being taken from individual liberty, while at the same time, it can be asserted as the picture takes shape, that continuing infringements can be justified because it was allowed in the past…or because the Courts refused to uphold past challenges.  Essentially, such a philosophy fosters an adversarial relationship between the state and those who would be governed by it, because the state could, in time remove all restrictions lawfully imposed on it by the nation’s bylaws without ever calling for an upfront and open national referendum on the restriction itself.  As long as the state succeeds with its initial usurpation of that which was deliberately withheld from it, no further usurpation can ever be stopped; as long as they get away with it once, they would legally be allowed to get away with it again, while those who believe that they have been guaranteed such rights are slowly stripped of them, and rendered powerless to prevent it because their rights were not asserted from the start.  To allow this to either our representatives, or to nine (really less than nine) unelected men and women who are not in any way accountable for such extrajudicial activity is completely contrary to the idea of limited government on which this nation was founded, and encourages those who seek power, those of malicious intent, and those who are jealous of individual liberty, and the disparate impact that results from people being free to make their own choices about how they live, to subvert this founding principle at every opportunity.  Ultimately, it isn’t about safety, it is about control.

This is why despite having an entire Federal agency, with what would be an awesome name for a store, devoted to enforcing the infringements on the Second Amendment that previous generations mistakenly permitted, we still have crimes committed  with guns in this country.  It is why despite the fact that we have hundreds of laws criminalizing the ownership of certain firearms, and relating to the transfer, and use of firearms in crimes, crimes are still committed with guns in this country.  It is why, despite clear evidence of many of these crimes being broken in a manner that reveals itself to these Federal minders who are so empowered for our “safety” and “security” that the prosecution for these violations is shockingly, dare I say criminally low.  Against this stew of contradictions, and the constant drumbeat for more laws that the Federal government is still specifically prohibited from engaging in in the first place, one can only conclude that this drive is about control, and the ability to, through selective enforcement, prosecute certain people for engaging in activities that by the letter and the spirit of the organic law of this nation, remains, and always has been perfectly legal.

We need to say “NO!”  “HELL NO!”, and “ABSOLUTELY NOT!” until our self-appointed betters either come by the power they keep trying to assume for themselves honestly, by amending the bylaws, so that EVERYONE gets a say in the process, or until they get the message.

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So I heard about this story on the way home. Back in November, Tyndale House Publishers (They publish Bibles and other religious materials) sued to enjoin the HHS from imposing its mandates upon it, and this interesting exchange took place at the hearing:

Benjamin Berwick [DOJ Flunky]: “Well, your honor, I think, I think there are two distinct ideas here: One is: Is the corporation itself religious such that it can exercise religion? And my, our argument is that it is not. Although again, we admit that it is a closer case than for a lot of other companies. And then the second question is, can the owners–is it a substantial burden on the owners when the requirement falls on the company that is a separate legal entity? I think for that question precisely what their beliefs are doesn’t really matter. I mean, they allege that they’re religious beliefs are being violated. We don’t question that. And we don’t question that that is the belief.

Judge Reggie Walton: But considering the closeness of the relationship that the individual owners have to the corporation to require them to fund what they believe amounts to the taking of a life, I don’t know what could be more contrary to one’s religious belief than that.

Berwick: Well, I don’t think the fact this is a closely-held corporation is particularly relevant, your honor. I mean, Mars, for example–

Judge Walton: Well, I mean, my wife has a medical practice. She has a corporation, but she’s the sole owner and sole stock owner. If she had strongly-held religious belief and she made that known that she operated her medical practice from that perspective, could she be required to pay for these types of items if she felt that that was causing her to violate her religious beliefs?

Berwick: Well, Your Honor, I think what it comes down to is whether there is a legal separation between the company and—

Judge Walton: It’s a legal separation. I mean, she obviously has created the corporation to limit her potential individual liability, but she’s the sole owner and everybody associates that medical practice with her as an individual. And if, you know, she was very active in her church and her church had these same type of strong religious-held beliefs, and members of the church and the community became aware of the fact that she is funding something that is totally contrary to what she professes as her belief, why should she have to do that?

Berwick: Well, your honor, again, I think it comes down to the fact that the corporation and the owner truly are separate. They are separate legal entities.

Judge Walton: So, she’d have to give up the limitation that conceivably would befall on her regarding liability in order to exercise her religion? So, she’d have to go as an individual proprietor with no corporation protection in order to assert her religious right? Isn’t that as significant burden?

The correct answer, for those who didn’t pay attention in class, is “HELL YES, IT IS A SIGNIFICANT BURDEN!”

Corporations are private property. Even if you own publically traded stock, it is still private property. Why do people own private property? To do with it as they wish. If I can’t act through a corporation I own in a manner consistant with my Constitutionally protected beliefs, then how, exactly, do we still have a First Amendment?

I think the Judge understands that as it applies to personal services corporations, which are extentions of their owners, the government model becomes completely disconnected from reality, which is why he issued the injuction.

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Seattle Times columnist Danny Westneat’s recent piece on a Washington Senate Bill that would permit the local Sheriffs to enter the homes of assault weapons owners to ensure that their weapons are “properly secured” got some traction this weekend.

Of course, when he contacted sponsors of the 8 page bill about this provision, one of the sponsors, state Senator Adam Kline said:

“I made a mistake,” Kline said. “I frankly should have vetted this more closely.”

Except that it doesn’t appear to be a mistake at all.

Senator Kline was a sponsor of an assault weapons bill in the 2009-2010 session which contained the EXACT SAME  PROVISION.  From Bill 6396:

(5) In order to continue to possess an assault weapon that was legally possessed on the effective date of this section, the person possessing the assault weapon shall do all of the following:

 (a) Safely and securely store the assault weapon. The sheriff of the county may, no more than once per year, conduct an inspection to ensure compliance with this subsection;

 And from a bill he sponsored in 2005, Bill 3475:

(5) In order to continue to possess an assault weapon that was legally possessed on the effective date of this section, the person possessing the assault weapon shall do all of the following:

 (a) Within ninety days following the effective date of this section, submit to a background check identical to the background check conducted in connection with the purchase of a firearm from a licensed gun dealer;

(b) Unless the person is prohibited by law from possessing a firearm, immediately register the assault weapon with the sheriff of the county in which the weapon is usually stored;

(c) Safely and securely store the assault weapon. The sheriff of the county may, no more than once per year, conduct an inspection to ensure compliance with this subsection;

Senator Kline didn’t “make a mistake”.  Senator Kline has trouble with understanding the meaning of the words “…shall not be infringed.”  Senator Kline has a HISTORY of supporting gun registry, and warrantless searches of the homes of law-abiding citizens.  Senator Kline doesn’t like freedom, and as such isn’t fit to hold office. (Nor is his co-sponsor in this endeavor, Senator Kohl-Wells.)  It bears noting that these bills are almost identical, further demonstrating that this wasn’t a mistake; it was deliberate.
This bill would violate Sections 2, 7, and 24 of the Washington Constitution and the 2nd and 4th Amendments of the United States Constitution.  The repeated sponsors of this bill are not fit to hold office. 

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Welcome Ace of Spades readers! Come for the scratched Proggie, stay for The Asterisk* and The Error of NEED.

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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.”

-Voltaire

“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.” 

-Voltaire

“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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“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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