Right Juris

Many news and radio personalities are worried about the Fairness Doctrine making a come back. There are some out there that find this worry to be unfounded. For instance, Jesse Walker writes that this is not something to worry about because he doesn’t think Obama will reinstate the Fairness Doctrine. Walker states:

It won’t happen, says Obama. On June 25, in a savvy political move, his press secretary sent an email to the industry journal Broadcasting & Cable. Deftly deflating the scare, the secretary stated flatly that “Sen. Obama does not support reimposing the Fairness Doctrine on broadcasters.”

The question here is, how much can we trust Obama to keep his word? As much as we could trust him to not bypass public financing of his campaign? Personally I worry more about Pelosi and Reed. We have already heard intimations from their ilk that the Fairness Doctrine will be making a come back. Can we really expect Obama to veto legislation passed by a Democrat controlled Congress that contains some version of the Fairness Doctrine? I am very skeptical that he would do that.

What is at stake in this election? More taxes vs. less taxes; mandated healthcare vs. government grants for healthcare; victory in Iraq vs. international standing; the patriot act; Guantanamo Bay; torture? Is this election about character? These are all important issues to the American people. Some would say that Obama and McCain really aren’t that far from each other on these issues, and maybe that isn’t far from truth.

With less than a week until the polls close and history is made (either way), the one story that has not seen the light of day, that has been cast by the way side, is the constitutional revolution that lies just around the corner. It lies in wait, lurking in the shadows, ready to rear it’s ugly head.

Some may say, ‘I thought Obama was a constitutional law professor.’ Didn’t he go to Harvard Law School? Wasn’t he the first black man to be chief editor of the Harvard Law Review? How could Obama’s election be a problem for the constitution?

Let us look at his views on our constitutional order, and the situation we have with the judicial system in this country. First, there are large numbers of current and potential vacancies on the benches of Federal courts all around the country. Six of the nine justices on the Supreme Court will be over 70 after January 1st, 2009. Further, President Bush has not been able to appoint several judges he has proposed for vacant seats around the country, because of the Democrats in the Senate. They have refused to even submit his requests to committee. With the potential of a Democratic filibuster proof majority in the Senate, we are looking at a blank check opportunity for a President Obama to appoint radical judges to the bench. We are looking at a major shift in the judicial system, even a CONSTITUTIONAL REVOLUTION.

What kind of judges will Obama pick? Speaking in July 2007 at a conference of Planned Parenthood, he said: “We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old. And that’s the criteria by which I’m going to be selecting my judges.”

Obama voted against the confirmations of Chief Justice John Roberts and Justice Samuel Alito. In explaining his vote against Roberts, Obama stated that deciding the “truly difficult” cases requires resort to “one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.” In short, “the critical ingredient is supplied by what is in the judge’s heart.”

Mr. Obama’s criteria for judges is empathy, heart, etc? WOW! Is that what judicial review is about? Does the constitution grant the judicial branch the power to overturn laws passed by the legislature because it doesn’t sit well with a particular judge’s heart? That would make them the ultimate power in government. They would essentially be 9 kings in black robes. I don’t think this is what the founders had in mind.

Let’s look at the view of Justice James Iredell in the case of Calder vs. Bull. Iredell puts the role of the court in plain English.

“The ideas of natural justice are regulated by no fixed standard: the ablest and the purest men have differed upon the subject; and all that the Court could properly say, in such an event, would be, that the Legislature (possessed of an equal right of opinion) had passed an act which, in the opinion of the judges, was inconsistent with the abstract principles of natural justice.

There are then but two rights, in which the subject can be viewed: 1st. If the Legislature pursue the authority delegated to them, their acts are valid…they exercise the discretion vested in them by the people, to whom alone they are responsible for the faithful discharge of their trust… 2nd. If they transgress the boundaries of that authority, their acts are invalid…they violate a fundamental law, which must be our guide, whenever we are called upon as judges to determine the validity of a legislative act.”

Judges must determine if the state or the federal government (depending on the case) has violated a provision of the constitution, or acted outside the powers granted to such legislatures by the constitution. The power of both entities are limited by the constitution. They are not limited by the empathy and hearts of judges in our constitutional order.

If Obama is elected, expect our judicial system to become the new constitution. Say goodbye to the old one because it won’t have any meaning. The Obama courts will begin to recognize limits on government that do NOT exist in the constitution. They will also begin to recognize obligations and powers of the government, that also are NOT in the constitution.

Gay marriage, welfare, healthcare, government funded abortion and physician assisted suicides are just some of the “positive” rights likely to come. Obama has also advocated “redistributive change.” Though he hasn’t been optimistic about the courts helping this in the past, his courts could be the ticket. He said there are theoretical arguments that could be made for the courts doing such a thing.

Then we have to worry about the scariest part of all of this. It may come as a shock to some of you, but Obama isn’t happy with America, its history, its successes, or its constitution. Does that sound like Republican rhetoric, fear tactics, or right wing propaganda to you? Is this a smear campaign? I plead my case. Let us realize that Obama has a long history of behavior and associations that are not friendly to the American way.

● His religious mentor is the infamous anti-American, anti-white, reverend Jeremiah Wright, who yells “God damn America” from the pulpit. Obama sits in this man’s congregation for years, and somehow doesn’t remember any of that. Okay, if this was the only incident of anti-Americanism in Obama’s history, I could let it slide. But the story doesn’t end there.

● His Chicago neighbor, William Ayers, who is an unrepentant terrorist. Obama served on a board with him, and started his political career in his living room. Obama called him a “friend.”

● His refusal to wear an American flag on his lapel. Need I say more. Isn’t it blatantly obvious yet.

● His own mother was so anti-American, that she dis-enfranchised herself from the country, living first in Kenya where she met Barry’s daddy, then moving to Indonesia. It wasn’t no field trip.

● Frank Marshall Davis, who Obama describes as his mentor in his autobiography. He was an anti-American communist.

● Even his wife came out and said it in public. “This is the first time in my adult life that I feel proud to be an American.” And people want this couple in the white house? It’s unfathomable to me.

The list could go on into the night. This list only nicks the surface of the anti-American ideology that has surrounded Barry for his whole life.

Hard work made this country the great economic success and global power it is today. Could we ask for much more in this country. We are financially stable and enjoy great freedoms here. But Obama wants to change all of that. That’s the change he has been speaking about.

Can you imagine that three federal appellate courts in Atlanta, St. Louis, and Richmond would disagree with three federal appellate courts in Boston, San Francisco, and Washington, D.C.? I know, it must be coincidence, but that is exactly what happened. That is why the Supreme Court decided Monday to hear the case of Flores-Figueroa v. United States.

The case arises on a challenge of application of a 2004 federal identity theft law to illegal immigrants who use fake social security cards. The law imposes a 2 year prison sentence, on top of the underlying felony, on anyone who “knowingly” uses another person’s means of identification. The feds have been using this law to go after illegal workers who are using fake social security cards. They have been using the law as leverage to get illegal workers to plead guilty to a lesser charge, resulting in five months in prison, followed by deportation without appearing before an immigration judge.

At issue in this case is whether an individual who used a false means of identification but did not know it belonged to another person can be convicted of “aggravated identity theft” under 18 U.S.C. 1028A(a)(1). The argument is that the illegal worker who uses a conjured number is not stealing another person’s identity, at least not “knowingly,” rather he is only fabricating a number. Mr. Figueroa will be facing a 51 month sentence even if he wins. There is a worry that this law could be used as a trap to the negligent.

Certainly certiorari was the right decision with lower courts in disagreement over the issue. The standard should be established once and for all. Yet, it is amazing to me that these courts could be so divided on the issue. It seems that a value judgment is being made by some of the lower courts. The courts who have ruled against the law’s application to illegal immigrants are valuing their crimes lower than someone who seeks out your identity to steal your money or defraud others. They see these illegal immigrants as people just trying to work. Yet what they have done is stolen people’s means of identity to defraud others. They are stealing from the tax payer. They certainly are using these numbers “knowing” that it could be another persons means of identity. It seems like we are splitting hairs here people. This is the problem with our legal system. Let me know what you think.

If you want to see the petition for certiorari, etc., see Scotusblog.

Okay, so if you have not been following this story, the 6th Circuit trial court originally issued a Temporary Restraining Order (TRO) against Ohio Secretary of State Jennifer Brunner requiring her to do her job. Namely, ensuring that the registration forms received from groups such as ACORN and others are legit. Brunner had essentially said that she wasn’t going to bother to alert local election boards when the state received suspicious or fraudulent registration forms. So, the 6th Circuit originally ruled that she did indeed have to share this information.

Then, a 3 panel Appellate Court over-turned the Trial court stating that Brunner didn’t have to do this, it was a head scratching opinion, but TROs are troublesome because you have to show, among other things, that you are likely to prevail on the merits lately, a somewhat burdensome standard. Then the 6th Circuit decided to hear the TRO en banc, or the full 9th Circuit. This time they ruled 9-6 to reinstate the TRO against Brunner. Among other things, the Court ruled:

“So far as this record is concerned, the Secretary has given no tenable exlanation why her current interpretation of the statute, as opposed to the office’s prior implementation of the law, remotely furthers the anti-fraud objective of the law.”

The court mocks Brunner’s defense as “[t]he bureaucrats’ lament - that this will be difficult to do.”

The last part is particularly funny, they “mock” Brunner’s defense that the job she has been tasked to do, namely ensure that federal and state election laws be followed, is too difficult. Essentially the Court also rules that Brunner is in violation of Federal law. The “Help America Vote Act” (HAVA), requires that state officials must share information from databases that they keep regarding voter registration. That is what is particularly shameful in Brunner’s case. The information was readily available, but she refused to share it with local units, thus she gets slammed by the Court. It seems pretty clear both by her actions and the ruling of the Court that her main reason for not doing so, is because she is a partisan hack and these actions help Democrats and Obama.

Here is a link to the ruling if you should like to read it.

I spent the evening last night in a Constitutional law class, only to come home and listen to Joe Biden “teach” me and other Americans about the Constitution. I was APPALLED!

Let’s start with this quote:

“there will be absolutely no distinction from a constitutional standpoint or a legal standpoint between a same-sex and a heterosexual couple.”

Umm… marriage is NOT a constitutional issue. It is one of the few issues left standing from the activist Supreme Court that is still only within the powers of the individual states. If Joe Biden thinks the Constitution will grant marriage rights to gay couples, he is really feeding folks a line of bull hockey.

Another MAJOR gaffe – of course, said in a tone of the oh-so-experienced one lecturing the inexperienced student (Palin):

“The idea he [Dick Chaney] doesn’t realize that Article I of the Constitution defines the role of the vice president of the United States, that’s the Executive Branch. He works in the Executive Branch. He should understand that. Everyone should understand that.”

OK, Article I of the Constitution define the role of CONGRESS not of the Executive branch. Article 2 defines the role of the Executive branch. This is an unforgiveable gaffe for a lawyer AND a Senator. So yes, Dick Cheney does not realize that Article I defines the role of the vice president – and neither did the founding fathers. Article 2 defines the role of the Vice President as taking over if the President can no longer govern and that the vice President can be impeached. That, we sort of leaves a lot of leeway for what the VP can do, doesn’t it Joe?

Another major gaffe from Sen. Biden:

“The only authority the vice president has from the legislative standpoint is the vote, only when there is a tie vote. He has no authority relative to the Congress.”

And,

“And the primary role of the vice president of the United States of America is to support the president of the United States of America, give that president his or her best judgment when sought, and as vice president, to preside over the Senate, only in a time when in fact there’s a tie vote. The Constitution is explicit.”

Well here is the wording from the Constitution – this time, from Article I, Section 3:

“The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.

The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.”

I think Mr. Biden is wrong here too. I don’t see anything that says that he can only preside when there is a tie vote. It say he can only VOTE when there is a tie vote. What it does say is that he cannot preside when he is exercising the Office of the President.

Senator Biden needs to retake the Constitutional section of his bar exam.

I was also interested in Sen. Biden’s invocation of the Violence Against Women bill. Too bad nobody knew that comment was coming up. The bill was found to be unconstitutional in 2000 under the Commerce Clause as overstepping the authority of the states. The case was United States v. Morrison 529 U.S. 598, 2000. Congress passed the bill under the Commerce Clause as being related to commerce! Everybody is against violence to anybody, including this sad case of a woman who was raped at Virginia Tech, which did nothing to the two young men who raped her. However, local criminal statutes are supposed to cover such crimes and Congress’s (and Biden’s Congressional power grab) was stopped by the Rehnquist court (with the usual liberal suspects dissenting).

There you go – Sen. Biden, Esq., the towering source of liberal statesmanship in the Senate – who doesn’t even know which Article of the Constitution gives Congress its powers.

Keep in mind too, it is Biden that led the charge against Bork to be a Supreme Court justice - the start of the “gotcha” confimation hearing litmus tests applied only to conservatives.

It is shameful.