Thursday, September 30, 2010

One Last Comment On Mr. O'Keefe

The more I think about this whole boat plot, the more I think about the Parcell family when they first came to America:

Viruses Doing Bidding of American Foreign Policy

Following on the heels of a week of Stuxnet news, we have an interesting story coming out of Afghanistan.  Apparently, a blight has halved the productivity of opium poppies in some of the main growing regions. Afghanistan grows roughly 90% of teh world's opium poppies.

Crop eradication has long been a goal of the UN Office of Drug and Crime as well as the U.S. Drug Enforcement Agency, and the U.S. is known to have pursued research of biological agents to kill drug crops in South America and Central Asia.  There is no indication that this virus limiting opium yield from an acreage of poppies was engineered or designed intentionally, but this possibility warrants serious investigation.

The control of the opium trade has long provided a financial support and cause for violence in opium producing regions from Afghanistan to the Golden Triangle.  The Taliban as well as unaffiliated warlords finance their armies by processing the opium and transporting it to Pakistan to be processed into heroin and shipped internationally.  An additional northern route of distribution is expanding, with the initial processing taking place in Afghanistan and passing through central Caucus states and into Russia, a growing market for narcotics.  The US government has an obvious stake in limiting the number of growers and the profitability of growing poppies.

Wednesday, September 29, 2010

MD Wiretap Violation Not a Slam Dunk Against O'Keefe

Earlier today I alleged that James O'Keefe deserves to be thrown in a Maryland State penitentiary for planning to illegally record a conversation with a correspondent from CNN. I may be wrong. I based this opinion on my reading of MD v. Graber, a case decided two days ago which brought the Maryland wiretap law to my notice. Though James O'Keefe may still have violated the law, the Maryland case law is not as clear on whether he is likely to be convicted if indicted as I had initially anticipated.

Upon review of the relevant case law, specifically a civil suit Hawes v. Carberry, 103 Md. App. 214 (1995), I discovered that it may be more difficult to prosecute O'Keefe than I had originally envisioned. In Hawes, the judge reversed a lower court decision which awarded damages to Mr. Carberry on the basis that Mr. Hawes illegally recorded a private conversation on Mr. Carberry's doorstep. While the Hawes decision reinforces my analysis of what constitutes an illegal taping as far as the requirements of surreptitiousness, one-party consent, and the expectation of privacy, the judge reverses the decision because Mr. Hawes's action was not sufficiently "willfull." Let's throw the old relevant sections up on the big board again:
§ 10-402 (a) Except as otherwise specifically provided in this subtitle, it is unlawful for any person to: (1) Willfully intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept, any wire, oral, or electronic communicaton;

James O'Keefe Violates MD Law

UPDATE: In light of a circuit court's 1995 decision about the meaning of "willfully", it is not as clear as I present in this article that James O'Keefe would necessarily be convicted if tried under the wiretap law. Here I discuss the possibility that he gets off, but still think the statute and case law supports my points here, if slightly less strongly. I apologize if anyone assumed the below was a complete account of the issues at hand in the wiretap law.

CNN was apparently almost the victim of an elaborate hoax by Mr. O'Keefe, the rather silly and thoroughly dishonest play actor. Emails from Mr. O'Keefe to conservative activists outline his plan to lure CNN correspondent Abbie Boudreau onto a boat laden with sexually suggestive props and record the event without her consent.

Now it seems to me that the Maryland law prohibiting wiretapping (discussed here yesterday) would have been applicable, and would have prohibited Mr. O'Keefe's plan. The boat upon which Mr. O'Keefe endeavored to record a conversation was docked within the state of Maryland on the Patuxent River, St. Mary's County. Let's throw the relevant statute up on the big board:

Tuesday, September 28, 2010

Novel Argument Against Elected Judges

I'm just beginning to pay attention to the fascinating debate over how judges should be placed in office. Minnesota currently has a mess of a mixed system, in which 90% of judges are appointed, and tend to resign rather than face a reelection campaign. Most of the discussion surrounding appointment/election has to do with distrust of elites, rule of law, the myth that courts protect minority rights, legitimacy, and of course, the evils of elections. I think I may have found the first pro-democracy argument against electing judges:

Even when an unpopular justice is removed by a majority, there are serious difficulties for the rule of law and the fulfillment of popular policy goals. Because we live in a democratic, Constitutional republic, when the rule of law is stifled, it means the will of the majority is prevented from taking effect. If the effort to remove a justice is successful, can it be said that the public has overturned the decision? It is an unclear point. A self-interested justice may in the future refrain from relying on precedent which appeared central to a successful removal campaign, but the legal community may well regard it as a standing precedent. The situation becomes doubly confusing if the legislature does not engage the judiciary on a substantive point, which they are unlikely to do if they believe the voters have already repudiated a decision. Treating judges like legislators creates problems for democracy, even if they are already making policy.

Weird Constitutional Inversion of the Day

The Washington Post blog is reporting a strange story out of Maryland's Harford County in which a motorcyclist was jailed for recording a traffic stop by an plain clothes police officer. The Harford County state's attorney, Joseph Cassilly, charged the motorcyclist under Maryland's anti-wiretapping law after Graber posted the video on youtube, and obtained a grand jury indictment for recording the state trooper without consent. The charging documents included three counts of violating the MD wiretap law: (1) Unlawful interception of an oral communication in voiolatino of CJ 10-402(a)(1)... (2) Unlawful disclosure of an intercepted oral communication in violation of CJ 10-402(a)(2)... (3) Unlawful possession of a device "primarily useful for the purpose of the surreptitious interception of oral communications" in violation of CJ 10-403(a).

Monday, September 27, 2010

The Death Penalty

Possibly the most interesting bill of rights provision is the Eighth Amendment, which guarantees that prisoners of the United States will not be subject to "cruel or unusual" punishment. When this clause was approved by the states, a federal statute calling for the hanging of pirates, traitors, counterfeiters, mutineers, and jailbreakers was already on the books. We cannot pretend that the framers of it meant to encompass all death as a cruel and unusual punishment. Yet this exactly the provision under which attacks on the death penalty are supported.

Harold Pollack over at the Reality-Based Community discusses the policy arguments behind the Death Penalty with plenty of common sense and restraint. The mere fact that the death penalty elicits a great deal of emotion from disinterested observers makes us wonder if it isn't an 'unusual' or 'cruel' punishment under a modern frame of reference. Americans intuit the largeness of the principle involved in being a country that puts its citizens to death, and there are plenty of partisans on both sides. While many people smarter than me have delved deep into whether the policy is an effective crime deterrent (it isn't), or is required by some larger ethical code (read: Leviathan), there is still quite a lot of territory in the is-it-worthwhile-as-a-constitutional-value debate

So does such a reading of the 8th Amendment--necessary for the defense of US survival and commercial interests beyond the borders of teh states--support a state's killing of a citizen? First of all, let us note that the power to punish criminals was until recently a local or state capability. The barest definition of the Police Power--the domain into which federal oversight could not be supported because it was so central to the organization of a sovereign political body--obviously includes the ability to define criminal behavior, prevent it, or punish it. A citizen would have to directly challenge the federal government with force for a federal death penalty to be issued. Murder at the high seas or piracy, or the counterfeiting of federal money would all threaten the commercial viability of the sovereign. These were the only instances in which federal power would put a man or woman to death, and it had nothing to do with the states.

Like so many things, this changed with adoption of the 14th Amendment. The Due Process clause, which guarantees to every citizen of the US basic criminal procedure protections at the very least, clothed convicts of state courts with the same rights as those in federal courts. In Furman v. Georgia, the Supreme Court, in a fractious decision, temporarily halted all death penalties in the United States. The basis of 3 opinions (two justices held that the death penalty was cruel and unusual simply because it had become rare enough) was that the death penalty was used unequally when its application was left up to a Jury. Most states quickly rewrote their most objectionable death penalty laws, cranking up the state apparatus for remedial homicide in about a decade.

As the "evolving standards of decency" keep changing, we should constantly reevaluate our society's taste for the death penalty, both in light of our internal preferences as well as those of the international community. If the United States is exceptional among developed nations in pursuing capital punishment against its criminals, does that fact alone make execution cruel or unusual? The degree to which we look to international legal norms to answer our constitutional questions will be a mounting question in the years to come, especially as countries whose constitutions we helped to write stake out different constitutional territory.

Friday, September 24, 2010

So, Does the PPACA Exceed Congressional Power?

As part of my effort to analyze the litigation attempting to block the Patient Protection and Affordable Care Act from taking effect, I've been walking through the recent Commerce Clause doctrine. I think we have enough background on the Court's opinions thus far to wade into the main issue of FL et al v. DHHS:

Does Congress have the authority to compel individuals to enter into an economic transaction?

This is precisely the question that Rivkin and Casey want the court to rule on. As noted in A Healthy Debate, the Congressional Research Service believes it is a novel question. In their words, the individual mandate is an "affirmative federal command that parties engage in a particular commercial activity." So, does Article I section 8 or any other part of the constitution allow the government to compel an economic transaction?

If we all think really hard, and have memories that last longer than 5 months, I think we can see a well-accepted constitutional example of such a transaction. Each year, nearly all Americans send the federal government a check, under threat of criminal prosecution, fines, and jail time. Though this is the language plaintiffs forward in their complaint to a federal judge, "The Act thus compels persons to perform an affirmative act or incur a penalty, simply on the basis that they exist and reside in the United States," taxation, surely, cannot be what Rivkin and Casey object to. What they must mean is: Can Congress compel through indirect means an economic transactions between individuals and a third party?

Rivkin and Casey forward the idea that because the activity that Congress is seeking to regulate on an individual level is a non-activity, it cannot be subject to federal action. Based on my reading of Lopez, Morrison, and Raich, the Court will not find this argument satisfying.

Health Care Reform Bump Starts Today

A lot of very smart popular-opinion prognosticators (say that 5 times fast) predicted that the final passage of the PPACA this spring would bring about a "bump" in popularity of the bill and the democrats. When polls showed no improvement in the numbers of Americans who thought the PPACA would help them and no help to Democratic numbers on health care or approval scores in general, a lot of them--including Bill Clinton recently--started to eat their hats.

The Conventional Wisdom that emerged was that public perception of the health care bill was still dogged by various myths and outright lies which characterized the Republican strategy against its passage. Ten key provisions of the PPACA went into effect yesterday, and the effects are starting to show up. Howard Pollack posts the letter which he received from his employer today which outlines what the health care reform battle means to the actual citizens of this country. I humbly suggest that as this type of letter is disseminated by private employers across the country this week that we might finally see a turning point in the support of the PPACA, which as many commentators continue to note, is unpopular at large, but contains some extremely popular components.

Wednesday, September 22, 2010

The Commerce Clause in Full

Last week I started a rather ambitious project of analyzing the arguments in Florida et al. v. US DHHS, the lawsuit in which 20 states are suing the federal government over the health care reform bill, now law as the Patient Protection and Affordable Care Act.

The most interesting argument that they counselors Rivkin and Casey advance for the plaintiffs is that Congress has exceeded its powers granted to it under the commerce clause in requiring an individual to participate in an economic transaction with a third party. I think there will be lots of novel argumentation on both sides of this issue, ranging from framers' intent to statutory construction and even, if we wish really hard, a natural law discussion. However, before we can delve into this upcoming debate, we have to buckle down and understand the commerce clause as it stands in modern jurisprudence.

Sunday, September 19, 2010

Protect State Interests!

Hold the presses- from the Commonwealth of Virginia, we have a great new idea for the Constitution of the United States. A columnist over at the Richmond Times-Dispatch is calling for of all things a constitutional convention. Specifically, Marianne Moran wants the states to band together to establish a negative check on federal power. I for one think this is a great idea.

The states cannot be forgotten in our political system. They are the basis of our constitutional order. After all, thirteen of them existed for almost a decade prior to the ratification of the Constitution as separate political entities and before that as colonies to the British Crown. They must have a voice in shaping the law of our new nation. But too often, our federal government ignores the will of the states.

Tuesday, September 14, 2010

The Commerce Clause, Taxing, and the General Welfare

I have in my hot little hands a debate published in the Pennsylvania University Law Review about the Individual Mandate.  No less, the side that argues that te individual mandate is an unlawful power grab is written by the very same David Rivkin and Lee Casey who are arguing the plaintiff's case in Florida et al v. US DHHS: A Healthy Debate. The debate took place before final passage of the PPACA, so there is some uncertainty in the exact language at play.

Rivkin and Casey start out where I would in the Commerce Clause debate, noting that the Supreme Court has held that Congress has the power to pass laws to regulate "activities, [which] taken in the aggregate, substantially affect interstate commerce." Gonzales v. Raich, 545 U.S. 1,22 (2005). This standard was first applied in defense of a law which prevented a farmer from growing, but not selling wheat in Wickard v. Filburn, 317 U.S. 111 (1942).  Because the hoarding of wheat would drive prices down if every farmer did it, Congress could regulate the practice.

A Republican Form of Government

I've been liveblogging my reading of the twenty-state challenge to the health care reforms that Congress passed into law this year.  The Patient Protection and Affordable Care Act is undergoing a court challenge with arguments being heard today in Florida.

One of the least compelling arguments in the Florida et al. v United States Dept of Health and Human Services complaint thus far is paragraph 57:
57. By effectively co-opting the Plaintiffs’ control over their budgetary processes and legislative agendas through compelling them to assume costs they cannot afford, and by requiring them to establish health insurance exchanges, the Act deprives them of their sovereignty and their right to a republican form of government, in violation of Article IV, section 4 of the Constitution of the United States. 
It doesn't take much to see why this claim is ludicrous. Firstly, there is no reason to believe that unfunded mandates on the States are unconstitutional. In fact, they are a common way of accomplishing national goals. Their ubiquity has often led to grumbling from state legislators, but it goes to show that they are well-accepted by Congress and all Constitutional actors. Secondly, the structure of the Constitution suggests that this clause is not a limitation on the federal government. All limitations on Congressional prerogative are located in Article I, sec 9. This is not proof positive that the Republican Form of Government guarantee cannot be an injunction against the state, but it is a clue that McCollum might be barking up the wrong tree.

Health Care Reform in the Courts

I had intended to provide an omnibus discussion of Florida et al. v United States Department of Health and Human Services, the lawsuit on behalf of twenty states challenging the Patient Protection and Affordable Care Act being argued today in the United States District Court for the Northern District of Florida.

Reading through the plaintiff's complaint (pdf), authored by Florida AG Bill McCollum is proving an interesting exercise. Basically, there are three alleged issues:

  1. The PPACA encroaches on individual liberty to choose to engage (or not to engage) in economic transactions with private corporations, exceeding Congressional Article I, sec. 8 authority.
  2. The tax on individuals which enforces the mandate is an unlawful capitation under Article I, secs. 2 & 9.
  3. Finally, the PPACA in its changes to Medicaid, represents an unlawful encroachment on State Sovereignty.
I will try, as the day goes on and I read more, to outline the debate surrounding this case as well as the analyze the arguments before the Court.  In a sense, I'm liveblogging my reading of the motions, case law, and relevant history.  Stay tuned to this space for an emerging story that I hope will be coherent as this case is important for the future of Commerce Clause authority. 

Monday, September 13, 2010

Reasons People Hate Lawyers #49283

Legalese as it is often called is an opaque dialect of English. Ask a judge, legal scholar, or law school professor about the apparent obfuscation, and they will likely tell you that the language of law attempts to make pronouncements more precise. Insofar as I am not one of these people, I have to imagine that precision has the merits of allowing argument to proceed more predictably or with more ease. Legalese is thus a type of techne, an artful bridge between the world of forms and reality.

And that makes some sense, until you see a headline like this from the SCOTUSblog's monday round-up:

Also at the Wall Street Journal Law Blog, Nathan Koppel notes Bloomberg’s recent reporting (highlighted by Anna on Friday) on the Twombly/Iqbal pleading standard and its effects on corporations defending against investor lawsuits.
The sentence appears to be in English until you hit the word jumble in the second line that was either assembled by a sociopath or a CAPTCHA generator.  Seriously, Twombly/Iqbal? I don't have the patience to look up exactly what this means, and I realize that it's only a google search away.

From context in the Wall Street Journal Law Blog, it's clear firstly that this is actually two separate things, and that the slash denotes a delineation between senseless and unpronounceable acronyms.  Secondly, they seem to stand for rules which have raised the burden on plaintiffs to avoid a motion to dismiss in civil claims. The rules have strengthened the hands of civil defendants who are often corporations.  Now that wasn't so difficult to say. But seriously, this one reason why people hate lawyers.

Monday, September 6, 2010

Internal Improvements

Last week I was reflecting on the plight of American infrastructure.  Crumbling bridges, cracking roadways, and inadequate railways all hold business investment back.  Ports are filling with sediment, wetlands are too damaged to prevent flooding, and the electrical grid is woefully inefficient.  Civil engineering in American cities is stuck in the 1950's, and public transportation is underwhelming from most urban areas, and is absent in suburbia.

So I'm heartened that the Obama administration is announcing a 6 year plan to increase the safety and utility of our road, rail, and waterways.  The plan appears very different from the stimulus focus on "shovel ready" projects because the Administration appears to actually have put together a plan.  Instead of money in search of projects, the Administration compiled a series of projects that are necessary.  Furthermore, they will create jobs in the short run and ensure private sector investment in the future.

Sunday, September 5, 2010

Revisiting Repeal- the 14th Amendment

The recent furor over the 14th amendment caught pretty much everybody by surprise, and most commentators wrote it of as a nativist push to expunge Birthright citizenship from the Constitution.  This explanation certainly has some truth to it, and it fits the overarching narrative of the Tea Party as a disorganized band lacking the discipline to stick to realistic policy demands. The repeal-the14th push was given voice by far-right politicians who have been attempting to please the energized right wing.

But I suspect there might be something more important at play.  Maybe I'm still reeling from paranoia after reading the New Yorker (subscription) article profiling the Koch Brothers network of influence.  In the wake of that article, I would find it hard to believe that any 'spontaneous' outpouring of support from Tea Party activists and paid organizers is anything other than a coordinated effort... at something.