Hello. Is there anybody in there? Just nod if you can hear me.
I am not sure how well the Trash Talk Machine is greased after such egregious neglect. But, we can only do what we do, and carry on. And those skilz have NOT been forgotten jack. So saddle up cowboys and cowgirls.
You would think being a blogger is an easy, Cheetos filled, lifestyle. Not the case. It is hard work, hard work I tell ya. I have suffered the indignation of Marcy and Jim yammering about wanting “trash this” and “trash that”. Weeeeelllllll that is so much SPAM! So, as I said earlier, it’s not easy, you know. I get no respect!
To make a quick comment on the title of this 2013 football season opening trash, shit is truly fucked up and bullshit. We have Mr. Constitutional Nobel Scholar President agitating to make unilateral bizarrely unnecessary war on Syria….apparently because he screwed up and drew a moronic “red line” in the sand and now has to prove he actually has bolas, in addition to stupidity and hubris. The man who when seeking votes to be elected in 2007-2008 claimed war without Congressional assent was wrong, and whose Vice-Predident called such unsanctioned war bullshittery and an “impeachable offense”, now insists without the UN, without the Brits, and with a coalition of effectively one (one who were previously described as “cheese eating surrender monkeys” not that long ago in American lore). But that is where we are now. Which is why the best name for this clusterfuck is “Operation Ballsack“. Yes, it is all about Obama’s balls, and his desperate need to prove he actually has a primordial pair.
Huh? Oh, wait! This was supposed to be football Trash Talk wasn’t it?!?!
Yikes, better get to that then. Last night was a pretty exciting open to the NCAA 2013 schedule. The ‘Ole Ball Coach Spurrier and the ‘Cocks did not seem all that animated, but still clocked a fairly solid NC Tarheel team. Looked like Vady was gonna take a bite off the ‘Ole Miss Rebels, but Ole Miss tailback Jeff Scott let loose with a 75 yard TD romp with 1:07 left, giving the Rebels a 39-35 last minute win. Good stuff. In other news, Lane Kiffen proves the question of why he has not been fired yet is still very salient by coaching a narrow win for Tommy Trojan over the Rainbows. Mighty Troy barely made it over the Rainbows. Yay. If that is all USC has, even the Sun Devils are going to wax them this year (a game I will be attending by the way). also, from Friday night, let me just say that Sparty has some VERY sticky fingered defenders. Look out B1G.
Well, what else is up I wonder? Hmmmm, appears some fella named “Manziel” was suspended half a game for something. Guess it wasn’t anything bad, cause Dez Bryant got suspended a whole season for eating dinner with Neon Deion Sanders. I sign my name on things a lot too. I get paid to do so. Not sure who would sign thousands of items for zip, nuthin, free. Apparently the crack investigators and accountability specialists at the NCAA found no problem though. And you KNOW how sane they are, cause they banned Penn State from all bowls for four years without having any NCAA violation whatsoever present. Ugh.
Alright. Games. Real ones are being played this weekend. Battle manufactured where it should be. Naturally. By a nerd at ESPN instead of that fake Operation Obama Ballsack baloney.
The game of the weekend looks to be Georgia at Clemson. These are two top ten worthy teams, if not potential national championship contenders. Special players abound everywhere on both teams, including Sammy Watkins the super receiver for the Tigers, and Tajh Boyd his quarterback. For the Bulldogs, Aaron Murray may be the best QB in the conference, and that includes Johnny Football. Awesome game to have so early. Alabama hosting Virginia Tech is another unusual one to start off with. The Tide will roll them, but there could be a struggle. should be a way better game than the Tide expected.
Honorable mentions goes to TCU and LSU in neutral Texas, Boise State/Washington and Cal versus Northwestern. Tell us what you have and why!
The one other thing I want to address is the noggins of the NFL. As you may have heard, there was a settlement this week, and it heavily favored the NFL. The craven plantation owners admitted nothing, gave up no liability findings, and gave up a ridiculously cheap total sum as hard settlement. By the time lawyer’s fees and mandatory testing etc. is deducted, it is criminal how little was gotten for a class of at risk humans. Down the road, if these class members live, they and their representatives will be screaming bloody murder. Here is an outrageously great article laying out the factors, and doing so with the tart and sarcastic truth it deserves
This long Labor Day weekend’s music is from the one, the only, Ms. Linda Ronstadt. I have a real affinity for Linda, and haver seen her numerous times including a couple of very special ones. If there has ever been a better pure female vocal talent, I am not sure I have seen it. Pure, and with a range to die for. The singing voice may be silenced, but Linda is rocking on and fighting for the causes she believes in. And they are, and always have been, great, and the right, ones. Oh, also, in case you didn’t notice, she had a backup band on the first video. Chuck Berry, Keith Richards, Robert Cray and some other chaps. The second is the band she normally toured with (including Waddy Wachtel – but with Mike Botts on drums instead of Russ Kunkel, who I always saw) and, trust me, they were absolutely killer, and very cool people to boot.
That’s it for now. Let Willis, and one and all, rock this joint. We are Livin In The USA. All things considered, it is still pretty fucking grand. Enjoy the holiday weekend my friends.
I was in court, so I didn’t see it, but apparently there was a little hearing over at House Judiciary Committee this morning on “Oversight of the Administration’s Use of FISA Authorities“. There was an august roll of Administration authorities and private experts: Mr. James Cole, United States Department of Justice; Mr. John C. Inglis, National Security Agency; Mr. Robert S. Litt, ODNI; Ms. Stephanie Douglas, FBI National Security Branch; Mr. Stewart Baker; Mr. Steven G. Bradbury; Mr. Jameel Jaffer; and Ms. Kate Martin.
Hmmm, let’s take a look and see if anything interesting occurred (as reported by Pete Yost of AP). Uh, well, there was THIS:
For the first time, NSA deputy director John C. Inglis disclosed Wednesday that the agency sometimes conducts what’s known as three-hop analysis. That means the government can look at the phone data of a suspect terrorist, plus the data of all of his contacts, then all of those people’s contacts, and finally, all of those people’s contacts.
If the average person calls 40 unique people, three-hop analysis could allow the government to mine the records of 2.5 million Americans when investigating one suspected terrorist.
The government says it stores everybody’s phone records for five years. Cole explained that because the phone companies don’t keep records that long, the NSA had to build its own database.
Go read all of Yost’s report, there is quite a bit in there that is stunning in the blithe attitude the Administration takes on this hoovering of data and personal information. Also clear: Congress has no real grasp or control of the government’s actions. The Article I brakes are out and the Article II car is accelerating and careening down the road.
The moment of truth has finally come on the long and tortured path through the Supreme Court for the marriage equality movement. Without further adieu, the Defense Of Marriage Act has been struck down as unconstitutional under Equal Protection grounds in a 5-4 opinion authored by Anthony Kennedy. A lack of standing has been found by the court in the California Hollingsworth v. Perry Prop 8 case, thus meaning the case will revert to the Ninth Circuit decision.
Frankly, everybody in the universe is going to have instantaneous analysis and opinion on the nature and import of these two decisions. I will likely be along with the same on particular aspects later, but for now I want to get the decisions and opinions up here so that one and all can read and discuss them. Below I will give the links to the opinions and the critical language blurbs from each.
United States v. Windsor (DOMA): Here is the opinion. As stated above, it is a 5-4 split authored by Justice Kennedy, joined by the liberal bloc of Ginsburg, Breyer, Sotomayor and Kagan. Chief Justice Roberts, Scalia, Thomas and Alito dissent in separate dissents written by Roberts and Scalia.
The opinion is very broad in range and focuses on Section 3 of DOMA, which will effectively obliterate the law. The key holding comes at the end of Kennedy’s majority opinion:
DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty. It imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper. DOMA in- structs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the mar- riages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.
Hollingsworth v. Perry (Prop 8): Here is the opinion. As stated above, the court found a lack of standing by the appellants Hollingsworth (Prop 8 Proponents). ROBERTS, C. J., delivered the opinion of the Court, in which SCALIA, GINSBURG, BREYER, and KAGAN, JJ., joined. KENNEDY, J., filed a dissenting opinion, in which THOMAS, ALITO, and SOTOMAYOR, JJ., joined. So, just to be clear here: The liberals are the reason the court could not issue a decision granting ALL Americans the right to marriage equality that citizens in California, and the other few states who have state law marriage equality, will enjoy.
Anthony Kennedy, by his crystal clear decision and language he penned in the Windsor DOMA decision, and his willingness to find standing and rule on the merits in the Prop 8 case, was ready to make it happen. And all the liberal justices, save for Sonia Sotomayor, prevented it.
The court has remanded Hollingsworth back to the 9th Circuit with instructions to enter a similar ruling based on lack of standing/jurisdiction. That means that the broad and sweeping decision entered by Vaughn Walker in the district court trial will become law in California.
Now, to again be clear, I expect there will be litigation attempts by the Equality Haters to try to restrict Walker’s decision to the two plaintiff couples and/or the two respective counties at issue in the original Perry complaint. I do not believe that will bear any fruit and fully expect full marriage equality to exist across all of California, but it may not be as immediate as it should. We shall see.
In closing, a very good day for marriage equality and LGBT rights. The DOMA decision is broad and provides for heightened scrutiny in evaluating marriage and sexual identity issues; that portends well for future rights litigation. And, of course, DOMA is dead. Also heartwarming that all of California’s citizens will have their rights protected; it is, however, sad that this will not extend to all Americans.
[As always on these Prop 8 posts, the absolutely incredible graphic, perfect for the significance and emotion of the Perry Prop 8 case, and the decision to grant marriage equality to all citizens without bias or discrimination, is by Mirko Ilić. Please visit Mirko and check out his stock of work.]
When we last left Scott Bloch, the former Bush attorney who was the appointed head of the Office of Special counsel (OSC), it was the original date for his sentencing. The court delayed entry of sentence to further investigate the full extent of his criminal conduct. It appeared that, after strong letters like from this blog and attorney Debra Katz, who represents several former OSC employees and good government groups, the court had real concerns about the entirety of Bloch’s vast criminal conduct compared to the sweetheart whitewashing collusive plea the DOJ was giving him.
Today, the court showed it really was not nearly as concerned as had been hoped. Scott Bloch has just been sentenced to one day in jail and two years probation. The single measly day in jail was stated by the court to be due to the “seriousness” of the offense. What a joke. I guess we should just be thrilled that, unlike James Clapper, Bloch was prosecuted at all. Still, it is a grossly soft sentence considering the entirety of Bloch’s admitted criminal conduct.
Just so the record is complete after all these years, here are the significant documents documents lodged with the court between the first sentencing date and today:
One last thing should be noted, and that is the sheer and craven hutzpah of the Department of Justice in whitewashing this matter. I refer to their supplemental memorandum (item 2 above), but specifically to footnote 1 therein that baldly claims other members of the public and victims aggrieved by Bloch just don’t have all the secret facts that the government was able to collect. It was truly an amazing thing to see the government saying they had the hidden facts mitigating Bloch’s conduct. Simply astounding and, as stated in the responsive letter to the court (item 4 above), it was unconscionable:
The bald faced hubris of the DOJ in footnote 1 of their “Supplemental Memorandum In Aid Of Sentencing” lodged in docket Number 21 to claim, and rely on, uncharged and unstated evidence and facts to mitigate the sentence of the defendant is far the other side of unconscionable and shocking. Hidden considerations cited by the government, in the face of the shocking record of conduct by defendant Bloch, are an insult to the court, and the citizens and rule of law it is designed to protect. In fact, the recitations of fact by the government itself demonstrates how absurd their protestations for mitigation, much those of Bloch himself in his supplemental sentencing memorandum (Docket Number 22), really are.
The perfidy, and obstruction to the American form of government, by Executive Branch officials upon the function of the Congress is a scourge that cannot be tolerated by the American people or the courts of the United States. After the questions germinated by ODNI Clapper’s testimony, there has been a sudden and welcome bi-partisan return of healthy concern over the conduct of Executive Branch officials in front of Congress.
This court stands at the crossroads on a seminal issue to the Constitutional health of these United States and the health of the separation of powers in our form of government. The problem of disdain for, and duplicity in front of, Congress must be addressed and a precedent set for the future. Mr. Bloch violated the trust and damaged the people and their lawfully elected representatives. Frankly the plea in this case is outrageous and should never be accepted, it is not in the interest of justice. But, if it is to be followed, and sentenced thereon, a precedent should be set and an appropriate sentence handed down for the egregious conduct of Scott Bloch.
If not in the instant case, then where? If not now, then when?
The answer is Article II Executive Branch officials and attorneys simply cannot, and will not, be prosecuted for perjury and obstruction of Congress, and neither the Article I Congress, nor the Article III Courts, seems to particularly care that such violation of constitutionally protected powers and prerogative is occurring habitually. It is a sad comment.
I have been a bit busy lately, so this is a tad late; but I should probably give the update on the Scott Bloch criminal sentencing that was scheduled for 9:30 am Monday morning May 13 in DC District Court in front of Judge Robert L. Wilkins. As you will recall, this blog has covered the Bloch case closely over the years due to its symbolism for government accountability and/or lack thereof.
The most recent coverage was immediately prior to the sentencing, and was in the form of a comprehensive post entitled “Former Bush Special Counsel Scott Bloch Bullies Journalists and Threatens 1st Amend Speech Before Criminal Sentencing”. As promised, a copy of said post was mailed to the court and it was entered on the docket. Several others sent letters as well, such as here for example.
The upshot is that Judge Robert L. Wilkins heard the voices. In what I can only describe as truly commendable, yet still refreshingly surprising, this is what happened at sentencing as described by Ann Marimow of the Washington Post:
The legal odyssey of Scott J. Bloch, the former head of the federal agency that protects government whistleblowers, continued Monday when a federal judge balked at proceeding with sentencing because of what he called an “improperly sanitized version of events.”
But U.S. District Judge Robert L. Wilkins chastised attorneys on both sides for presenting a narrow account of Bloch’s actions that the judge said doesn’t fully describe the conduct at issue. Wilkins said he was uncomfortable issuing a sentence until a fuller description of Bloch’s actions was in the record.
Sentencing documents, Wilkins noted, make little mention of Bloch’s previous deal with the U.S. Attorney’s Office in which he pleaded guilty to a misdemeanor charge of contempt of Congress.
In the current case, federal guidelines call for a sentence from zero to six months in prison. But prosecutors have agreed not to oppose a period of probation and want Bloch to pay a $5,000 fine and complete 200 hours of community service.
Wilkins suggested Monday, however, that he intends to consider Bloch’s conduct related to the previous case, which could expose him to jail time. The judge pointed specifically to Bloch’s position as a presidential appointee, a “position of public trust, operating with little oversight.”
Bloch’s sentencing hearing has been rescheduled for June 24.
We will try to do another update on status again before the next sentencing date on June 24. But, for now, hat’s off to Judge Robert L. Wilkins for hearing the voices of the public who object to the whitewash that was being applied to the misconduct in high office by Scott Bloch. Maybe there is hope for this Rule of Law thing after all.
When this blog last substantively left the continuing saga of Bush/Cheney Special Counsel Scott Bloch, it was with these words:
So, between August 2, 2011 and December 21, 2012, a period of nearly a year and a half’s time, the DOJ has done nothing whatsoever in furtherance of prosecuting Scott Bloch. Until today. And the vaunted Department of Justice has, on the Friday before the Christmas holiday…..filed a Motion to Dismiss. However, that is not the end of the story, as clause 5 of the Motion to Dismiss contains this language:
Concurrent with this Motion to Dismiss, the government is filing a new information.
Well, not quite concurrent, as the Motion to Dismiss was filed mid to late morning, and the new information was just now made public. The new charge, a misdemeanor, is pursuant to 18 USC 1361 Depredation of Government Property or Contracts. The factual basis is made out from the “seven level wiping” Bloch caused to be done. Here is the new information just filed.
Yes, that is the “Reader’s Digest” version of how Scott Bloch came to be where he is now….awaiting sentencing in the United States District Court for the District of Columbia. For a crime that barely even references, much less is indicative of, the actual acts he committed against the United States Government, and the citizens it represents.
But, Bloch is indeed now facing sentencing on the latest cushy plea he has been afforded by the Department of Justice; sentencing scheduled for Monday May 13, 2013, less than one week from today. Here is Defendant Bloch’s sentencing memorandum, and here is the curiously collusive memorandum from the DOJ, who simply cannot stand for any Article II Executive Branch attorney being sent to jail/prison for lying to Congress because, seriously, many more might be in jeopardy if that was the case and precedent.
So, what is Mr. Scott Bloch doing? Taking his medicine quietly for having been given the gift plea by the DOJ to a misdemeanor after he actually committed such acts that appear by all legal rights to warrant felony allegations? Allegations as were described the last time Bloch was tried to be handed such a gift horse plea by the DOJ as:
…felony crimes Bloch could have been, and should have been, charged with are staggering; including obstruction of justice, false statements, perjury, willful destruction of government property and Federal Records Act violations. But Defendant Bloch made a deal to plead to one little misdemeanor with the guarantee he would be considered under the most favorable sentencing guideline conditions imaginable.
Nothing has changed; not a single underlying fact has changed in the least, and Bloch still stands Continue reading
Since Dzhokhar Tsarnaev was taken into custody just over a week ago, the hue and cry in the public and media discussion has centered on “Miranda” rights and to what extent the “public safety exception” thereto should come into play. That discussion has been almost uniformly wrongheaded. I will return to this shortly, but for now wish to point out something that appears to have mostly escaped notice of the media and legal commentariat – Tsarnaev repeatedly tried to invoke his right to counsel.
Tucked in the body of this Los Angeles Times report is the startling revelation of Tsarnaev’s attempt to invoke:
A senior congressional aide said Tsarnaev had asked several times for a lawyer, but that request was ignored since he was being questioned under the public safety exemption to the Miranda rule. The exemption allows defendants to be questioned about imminent threats, such as whether other plots are in the works or other plotters are on the loose.
Assuming the accuracy of this report, the news of Tsarnaev repeatedly attempting to invoke right to counsel is critically important because now not only is the 5th Amendment right to silence in play, but so too is the right to counsel under both the 5th and 6th Amendments. While the two rights are commonly, and mistakenly, thought of as one in the same due to the conflation in the language of the Miranda warnings, they are actually somewhat distinct rights and principles. In fact, there is no explicit right to counsel set out in the Fifth at all, it is a creature of implication manufactured by the Supreme Court, while the Sixth Amendment does have an explicit right to counsel, but it putatively only attaches after charging, and is charge specific. Both are critical to consideration of the Tsarnaev case; what follows is a long, but necessary, discussion of why.
In fact, “Miranda rights” is a term that is somewhat of a misnomer, the “rights” are inherent in the Constitution and cannot be granted or withheld via utterance of the classic words heard every day on reruns of Law & Order on television. Those words are an advisory of that which suspects already possess – a warning to them, albeit a critical one.
In addition to being merely an advisory of rights already possessed, and contrary to popular belief, advising suspects of Miranda rarely shuts them down from talking (that, far more often, as will be discussed below, comes from the interjection of counsel into the equation). As Dr. Richard Leo has studied, and stated, the impact of Miranda on suspects’ willingness to talk to interrogators is far less than commonly believed. One study has the effect rate of Miranda warnings on willingness to talk at 16%; from my two plus decades of experience in criminal defense, I would be shocked if it is really even that high.
On top of this fact, the Miranda warnings relate only to the admissibility of evidence or, rather, the inadmissibility – the exclusion – of evidence if it is taken in violation of Miranda. Professor Orin Kerr gives a great explanation here.
Since there is, without any real question, more than sufficient evidence to convict Tsarnaev without the need for admissibility of any verbal confession or other communicative evidence he may have provided the members of the HIG (High Value Detainee Interrogation Group), the real Continue reading
Though increased soil moisture levels may be a big improvement over this past summer’s drought, a serious problem remains: there’s been too much late snow and it’s going to melt quickly.
Based on the 21-MAR-2013 hydrologic map above, conditions along the Red River basin were quite bad; changes of major flooding were already predicted at that time. Since that report, the State Climatology Office at University of Minnesota recorded 4 inches of water (which includes 13 inches of snow) at their Twin Cities campus. This same station, however, received between 6-15 inches less snow over the last month than Fargo, North Dakota, located on the Red River.
The data used for the Percent Chance of Flooding map below is dated 15-APR-2013, before the final snowfall tally after The Weather Channel-branded winter storm “Xerxes” on 16-APR-2013. The area between Bismarck and Fargo received at least two feet of snow.I’m no meterologist, climatologist, or hydrologist, but it sure looks to me like the chances of major flooding have increased from 80% to 100%. Just an uneducated guess on my part; I’ll also speculate flooding will accelerate within the next week-10 days without doing any additional research into the subject. (Hint: It’s called “spring.”) Continue reading
I am going to do something different today and put up a post for semi-live coverage – and discussion – of the DOMA oral arguments in the Supreme Court this morning. First, a brief intro, and then I will try to throw tidbits in here and there as I see it during and after the arguments.
The case at bar is styled United States v. Windsor, et al. In a nutshell, Edith Windsor was married to Thea Spyer, and their marriage was recognized under New York law. Ms. Spyer passed away in 2009 and Windsor was assessed $363,000.00 in inheritance taxes because the federal government, i.e. the IRS, did not recognize her marriage to Spyer in light of the Defense of Marriage Act, or DOMA. Litigation ensued and the 2nd Circuit, in an opinion written by Chief Judge Dennis Jacobs, struck down DOMA as unconstitutional and ruled in favor of Edith Windsor. Other significant cases in Circuit Courts of Appeal hang in the lurch of abeyance awaiting the Supreme Court decision in Windsor, including Golinski v. Office of Personnel Management, Gill v. OPM and Pedersen v. Office of Personnel Management.
As an aside, here is a fantastic look at the restaurant where Edith Windsor and Thea Spyer met nearly 50 years ago.
Arguing the case will be Solicitor General Donald B. Verrilli again for the United States, Paul Clement for the Bi-Partisan Legal Advisory Group (BLAG) on putative behalf of Congress, because the Obama Administration ceased defending DOMA on the grounds it was discriminatory and unconstitutional, and Robbie Kaplan for Edith Windsor. Clement and Verrilli are well known by now, but for some background on Robbie Kaplan, who is making her first appearance before the Supremes, here is a very nice article. Also arguing will be Harvard Law Professor Vicki Jackson who was “invited” by SCOTUS to argue on the standing and jurisdiction issue, specifically to argue that there is no standing and/or jurisdiction, because the Obama Administration quit defending and BLAG will argue in favor of standing and jurisdiction.
Here is a brief synopsis of the argument order and timing put together by Ed Whelan at National Review Note: I include Whelan here only for the schedule info, I do not necessarily agree with his framing of the issues).
Okay, that is it for now, we shall see how this goes!
10:39 am It appears oral arguments are underway after two decisions in other cases were announced.
10:51 am RT @SCOTUSblog: #doma jurisdiction arg continues with no clear indication of whether majority believes #scotus has the power to decide case.
11:00 am By the way, the excellent SCOTUSBlog won a peabody award for its coverage of the Supreme Court.
11:05 am @reuters wire: 7:56:34 AM RTRS – U.S. SUPREME COURT CONSERVATIVE JUSTICES SAY TROUBLED BY OBAMA REFUSAL TO DEFEND MARRIAGE LAW
11:15 am Wall Street Journal is reporting: Chief Justice John Roberts told attrorney Sri Srinivasan, the principal deputy solicitor general, that the government’s actions were “unprecedented.” To agree with a lower court ruling finding DOMA unconstitutional but yet seeking the Supreme Court to weigh in while it enforces the law is “has never been done before,” he said.
11:20 am Is anybody reading this, or is this a waste?
11:32 am @SCOTUSblog Kennedy asks two questions doubting #doma validity but nothing decisive and Chief Justice and Kagan have yet to speak.
11:40 am Wall Street Journal (Evan Perez) Chief Justice Roberts repeatedly expressed irritation at the Obama administration, telling Ms. Jackson, the court-appointed lawyer, and without specifically mentioning the administration, that perhaps the government should have the “courage” to execute the law based on the constitutionality rather instead of shifting the responsibility to the Supreme Court to make a decision.
11:45 am Wall Street Journal (Evan Perez) Paul Clement, attorney for lawmakers defending the law, argued that the went to the very heart of Congress’s prerogatives. Passing laws and having them defended was the “single most important” function of Congress, he argued.
11:52 am Wall Street Journal (Evan Perez) Justice Scalia and Mr. Srinivasan parried on whether Congress should have any expectation that laws it passes should be defended by the Justice Department. Mr. Srinivasan said he wouldn’t give an “algorithm” that explained when Justice lawyers would or wouldn’t defend a statute, but ceded to Justice Scalia’s suggestion that Congress has no “assurance” that when it passes a law it will be defended. That’s not what the OLC opinion guiding the Justice Department’s actions in these cases says, Justice Scalia interjected.
11:56 am Associated Press (Brent Kendall) One of the last questions on the standing issue came from Justice Samuel Alito, who asked whether the House could step in to defend DOMA without the Senate’s participation, given that it takes both chambers to pass a law.
11:59 am Bloomberg News During initial arguments today on the 1996 Defense of Marriage Act, Justice Anthony Kennedy suggested that a federal law that doesn’t recognize gay marriages that are legal in some states can create conflicts.
“You are at real risk of running in conflict” with the “essence” of state powers, Kennedy said. Still, he also said there was “quite a bit” to the argument by backers of the law that the federal government at times needs to use its own definition of marriage, such as in income tax cases.
Justice Ruth Bader Ginsburg said that when a marriage under state law isn’t recognized by the federal government, “One might well ask, what kind of marriage is this?”
12:05 pm @SCOTUSblog Final update: #scotus 80% likely to strike down #doma. J Kennedy suggests it violates states’ rights; 4 other Justices see as gay rights.
12:07 pm The argument at the Court is well into the merits portion of the case now
12:09 pm Wall Street Journal (Brent Kendall) Justice Kennedy, however, jumped in with federalism concerns, questioning whether the federal government was intruding on the states’ territory. With there being so many different federal laws, the federal government is intertwined with citizens’ day-to-day lives, he said. Because of this, DOMA runs the risk of running into conflict with the states’ role in defining marriage, he said.
12:12 pm It is pretty clear to me, from a variety of sources I am tracking, that the Court has serious problems with DOMA on the merits. Clement is getting pounded with questions on discrimination, conflict with state laws and federalism concerns. Pretty clear that if standing is found, DOMA is going down.
12:15 pm Wall Street Journal (Brent Kendall) Justice Ginsburg again says the denial of federal benefits to same-sex couples pervades every area of life. DOMA, she said, diminished same-sex marriages to “skim-milk” marriages. Justice Elena Kagan (pictured) follows a short time later saying DOMA did things the federal government hadn’t done before, and she said the law raised red flags.
12:19 pm @reuters wire: U.S. SUPREME COURT CONCLUDES ORAL ARGUMENTS ON FEDERAL LAW RESTRICTING SAME-SEX BENEFITS
12:30 pm @AdamSerwer Con Justices contemptuous of Obama decision not to defend DOMA but still enforce law. Kennedy said “it gives you intellectual whiplash”
Okay, as I said earlier, if the Justices can get by the standing issue, it seems clear that DOMA is cooked. I think they will get by standing and enter a decision finding DOMA unconstitutional as to Section 3, which is the specific part of the law under attack in Windsor. That effectively guts all of DOMA.
That is it for the “Live Coverage” portion of the festivities today. It should be about an hour and a half until the audio and transcript are available. As soon as they are, I will add them as an update at the top of the post, and will then put this post on the top of the blog for most of the rest of the day for further discussion. It has been bot a fascinating and frustrating two days of critical oral argument; please continue to analyze and discuss!
Back in February, when the “White Paper” was first “leaked”, Marcy wrote a fantastic article entitled Article II or AUMF? “A High Level Official” (AKA John Brennan) Says CIA Can Murder You on the issues of Article II authority versus AUMF authority in relation to the Obama targeted killing program. First off, let me say that the the lack of recognition of the presence of both these these respective authorities in the targeted killing program, even among legal commentators I respect greatly, is one of, if not the, most discouraging aspects of the discussion being had. Sadly, the big filibuster by Sen. Rand Paul did not necessarily improve the understanding, and even the New York Times continues to propagate the misdirection and misinformation peddled by the Obama Administration.
I wish to discuss the interaction of the statutory law contained in 18 USC 1119, the “Foreign Murder statute”, with the greater Obama Administration Targeted Killing Program, and the White Paper foundation for it. Specifically I want to point out the circular and disingenuous way in which the White Paper tries to bootstrap itself, and the Administration, around criminal liability for murder in the case of a targeted US citizen such as Anwar Awlaki. Frankly, Marcy let fly with another must read post on 18 USC 1119 and the White Paper yesterday in the wake of the New York Times sop to the Administration, and it filets both the White Paper, and the NYT, open at the seams.
The most important principle to understand about the White Paper’s discussion of 18 USC 1119 is, as Marcy noted, that it is impertinent if the the law of war (formally the “Law of Armed Conflict” or “LOAC”) is truly in play. In short, if the Administration is using the AUMF – military force – in an active battle situation, there is no need for further discussion, whether Mr. Awlaki is a US citizen or not. That, of course is diametrically opposed to what the facts were at the action point with Awlaki, and that we now know.
The truth is the Administration used a civilian agency, the CIA, to kill a US citizen without judicial due process, far from the “hot battlefield” and that is why such a deliberate attempt was made in the White Paper to obfuscate the legal basis for their targeting and killing, and why such a seemingly inordinate time was spent in the White Paper on a traditional criminal law statute, 18 USC 1119.