A little more than two hours ago, a fairly monumental day at the Supreme Court got underway. Two big boxes of opinion were brought out signaling at least two, and perhaps as many as four, new decisions were going to be announced. It was only two, but they are huge and critically important decisions King v. Burwell, better known as the “Obamacare case”, and Texas Dept of Housing v. Inclusive Communities Project, better known as the Fair Housing case.
Both King and Texas Housing are big, and both have been the cause of serious apoplexy and fear among liberals and progressives. And both were decided very much in the favor of the liberal position, so it was a very good day on both issues.
First off is King v. Burwell, and the full opinion is here. It is a 6-3 opinion written by Chief Justice Roberts. Many people seem shocked that the majority was 6-3. I am not. While I thought the challenger King plaintiffs had a cognizable legal argument, it always struck me as a losing one, and one the Chief Justice was unlikely to sign off on after his sleight of hand to keep the ACA alive in the earlier NFIB case.
Similarly, though Anthony Kennedy was a bigger concern because of his states rights history, he has a long history on protecting citizens on social justice issues (which is why we are about to get marriage equality, maybe as soon as tomorrow). And, once Obamacare was upheld in NFIB, and all the millions of additional Americans had been given health insurance access (which, let us keep in mind, is still different than actual healthcare), it really became a social justice issue, and thus one Kennedy would be very troubled to strip away.
As to the general overview, Rick Hasen at Election Law Blog has a great summary:
Before the case, so much ink was spilled (and more virtual ink virtually spilled) on the question of deference to the IRS’s interpretation of ambiguity under the statute (under the so-called “Chevron” doctrine) as well as principles of federalism, which were used to argue for results for and against the Administration in the case. There were also questions about the standing of various plaintiffs. There were arguments about the intent of the drafters, and what MIT economist Gruber said, or may have said, or may have misspoken about the way the law was supposed to work. In the end, the Court rejected application of Chevron deference to the IRS and federalism made no appearance. Nor did standing or Gubert get discussed. Instead the Court’s analysis went basically like this:
The question whether tax subsidies applied to poor people in states that did not set up their own health care exchange is important, so important that it is hard to believe that Congress would have delegated that question to an agency (and particularly to the IRS, whose job it is to collect revenue not design health care policy). So there is no “Chevron” deference on the question. The court has to use its tools of statutory interpretation to decide the case. The law, read as a whole, is ambiguous. It is certainly possible to read the challenged language as giving subsidies only to people in state exchanges and not in the federal exchange. But there are other parts of the law, read in context, that only make sense if subsidies apply to those in state or federal exchanges. In such an ambiguous case, it is the purpose of the law that should govern. “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.”
Go read all of Rick’s post, it is also notable for its explanation as to why King is likely the last word on the ACA as a viable entity and Obamacare is here to stay. I concur.
I would like to point out one aspect of the King decision I find particularly rewarding – the lack of attention to all the extrinsic noise that has been generated over the many months the King case was pending by all the crazed pundits on both sides of the issue at heart. Absent was all the relentless sturm and drang about standing, loss of standing, federalism, what Hans, err Jon, Gruber said or didn’t say, post hoc interviews with Congress members, their staff and lobbyists and what it meant, and all other sundry sorts of faux legislative history by people that apparently would not recognize real “legislative history” if it hit them in the butt. That is very satisfying thing for somebody that thinks appellate decisions should, at their core, be based on the statutes, precedence and the record on appeal.
For this I am thankful for the clarity and cleanliness of Roberts opinion. As a side note, the majority’s scuppering of the Chevron basis has created a side issue among us in the legal chattering class as to whether it signals a weakening of the “Chevron Doctrine”. Rick seems to think there is a fundamental weakening here. I am not so sure of that at all, even though I have had sincere problems with Chevron pretty much as long as I have been practicing law, as it gives far too much deference to often out of control administrative agencies, and the appellate burden is very onerous to overcome bad administrative rulings.
We shall see how the components of today’s decision in King play out in the future, but it was a very good day for the law, and the ACA, today.
The second, and also huge, case handed down today is the Texas Fair Housing decision, and the full opinion is here. Although it will be overshadowed today by the more famous (infamous?) King Obamacare decision, the Texas case is absolutely critical to the ability to fight and control discrimination.
As the excellent Lawrence Hurley reports for Reuters:
On a 5-4 vote in a major civil rights case, the court decided that the law allows for discrimination claims based on seemingly neutral practices that may have a discriminatory effect. Justice Anthony Kennedy, a conservative who often casts the deciding vote in close cases, joined the court’s four liberals in the majority.
The ruling also was a triumph for President Barack Obama and his administration, which had backed Inclusive Communities Project Inc, a nonprofit group in Texas that claimed the state violated the law by disproportionately awarding low-income housing tax credits to developers who own properties in poor, minority-dominated neighborhoods.
Although a broad win for civil rights advocates on the legal theory, Kennedy, writing for the court, indicated in the ruling that the Texas plaintiffs could ultimately lose when the case returns to lower courts.
The court was considering whether the 1968 law allows for so-called disparate impact claims in which plaintiffs only need to show the discriminatory effect of a particular practice and not evidence of discriminatory intent. There was no dispute over the law’s prohibition on openly discriminatory acts in the sale and rental of housing.
Kennedy wrote that Congress indicated in 1988 when it amended the law that it intended disparate impact claims to be available.
“It permits plaintiffs to counteract unconscious prejudices and disguised animus that escape easy classification,” Kennedy added.
Kennedy also made clear there are limits to the types of claims that can be brought, saying that “statistical disparity” alone is not enough. Plaintiffs must “point to a defendant’s policy or policies causing that disparity,” Kennedy added.
As Adam Serwer said on Twitter (here and here), “banks and insurance companies have been trying to tee up this case for years because they thought the Roberts court would rule in their favor” and “without this law, it’s unlikely any of the banks would have paid any price for trapping minorities in bad loans regardless of credit”. That is right. But it goes further than that, the “disparate impact” claim is one of the most important tools available to fight discrimination that may not be apparent on the face of a cagily crafted provision or business model policy, but which nevertheless is effected by it. Discriminatory animus has gotten very sophisticated, and this tool under the Fair Housing Act of 1968 is necessary to have to fight it.
Texas Fair Housing was a 5-4 decision authored, somewhat surprisingly, by Anthony Kennedy where he joined the four justices of the “liberal bloc”. It is yet another indication of where Tony Kennedy is on “social justice” issues, again a trend that augurs well for marriage equality. We shall know soon enough!
Barack Obama has a preternatural preference for ivory tower elites from Harvard when it comes to judicial and executive branch appointees, and David Barron is the latest example. The White House is in the final stages of an all out push to insure David Barron gets confirmed to a lifetime Article III seat on the First Circuit.
In this regard, Mr. Barron has gotten exactly the kind of fervent support and back channel whipping the Obama White House denied Goodwin Liu, and refused to give to the nominee at OLC that David Barron stood as the designated and approved Obama acting placeholder for, Dawn Johnsen.
It turns out Mr. Obama and his White House shop really can give appropriate support to nominees if they care, which seemed to be a trait entirely lacking earlier in the Obama Presidency. And by giving the ill taken legal cover to Mr. Obama for the extrajudicial execution of American citizens, that Obama had already attempted once without, Mr. Barron certainly earned the support of the Obama White House.
It would be wonderful if Mr. Obama were to give support to candidates for judicial seats and key legal agencies who protect the Constitution instead of shredding it for convenience, but it appears to not be in the offing all that consistently. Obama has never been the same since blowback from the release of the Torture Memos when he first took office. Even Federal judges like Mary Schroeder and Bill Canby who, less than a month after Obama took office, were stunned by the about face, and wholesale adoption, by Obama of the Bush/Cheney security state protocols. From a New York Times article at the moment:
During the campaign, Mr. Obama harshly criticized the Bush administration’s treatment of detainees, and he has broken with that administration on questions like whether to keep open the prison camp at Guantánamo Bay, Cuba. But a government lawyer, Douglas N. Letter, made the same state-secrets argument on Monday, startling several judges on the United States Court of Appeals for the Ninth Circuit.
“Is there anything material that has happened” that might have caused the Justice Department to shift its views, asked Judge Mary M. Schroeder, an appointee of President Jimmy Carter, coyly referring to the recent election.
“No, your honor,” Mr. Letter replied.
Judge Schroeder asked, “The change in administration has no bearing?”
Once more, he said, “No, Your Honor.” The position he was taking in court on behalf of the government had been “thoroughly vetted with the appropriate officials within the new administration,” and “these are the authorized positions,” he said.
Make no mistake, from my somewhat substantial knowledge of Mary Schroeder, that was the voice of shock and dismay. But it was an early tell of who and what Barack Obama, and his administration, would be on national security issues from there forward. And so, indeed, it has been.
What was unconscionable and traitorous to the rule of law and Constitution for Obama, and the Democratic majority in the Senate, under George Bush is now just jim dandy under Barack Obama. It is intellectual weakness and cowardice of the highest order.
So we come back to the case of David Barron. Frankly, it is not hard to make the argument that what Barron has done is actually worse than the travesties of John Yoo and Jay Bybee. As unthinkable, heinous and immoral as torture is, and it is certainly all that, it is a discrete violation of domestic and international law. It is definable crime.
But what David Barron did in, at a minimum, the Awlaki Targeted Kill Memo (there are at least six other memos impinging on and controlling this issue, at a minimum of which at least one more is known to be authored by Barron, and we don’t even deign to discuss those apparently), was to attack and debase the the very foundational concept of Due Process as portrayed in the Bill of Rights. Along with Habeas Corpus, Due Process is literally the foundation of American criminal justice fairness and freedom under our Constitution.
David Barron attacked that core foundation. Sure, it is in the so called name of terrorism today, tomorrow it will justify something less in grade. And something less the day after. Such is how Constitutional degradation happens. And there is absolutely nothing so far known in Mr. Barron’s handiwork to indicate it could not be adapted for use domestically if the President deems it so needed. Once untethered from the forbidden, once unthinkable Executive Branch powers always find new and easier uses. What were once vices all too easily become habits. This is exactly how the once proud Fourth Amendment has disappeared into a rabbit hole of “exceptions”.
This damage to Due Process occasioned by David Barron can be quite easily argued to be more fundamental and critical to the Constitution, the Constitution every political and military officer in the United States is sworn to protect, than a temporally limited violation of criminal statutes and international norms on torture as sanctioned by Yoo and Bybee. But it is not treated that way by cheering Dems and liberals eager to confirm one of their own, a nice clean-cut Harvard man like the President, to a lifetime post to decide Constitutional law. What was detested for Jay Bybee, and would certainly be were John Yoo ever nominated for a federal judgeship, is now no big deal when it comes to David Barron. Constitutional bygones baybee; hey Barron is cool on same sex marriage, what a guy! Screw Due Process, it is just a quaint and archaic concept in a piece of parchment paper, right?
If the above were not distressing enough, the Barron nomination was supposed to, at a minimum, be used as leverage to get public release of the Barron handiwork legally sanctioning Mr. Obama to extrajudicially execute American citizens without a whiff of Due Process or judicial determination. Did we get that? Hell no, of course not. A scam was run by the Obama White House, and the Senate and oh so attentive DC press fell for it hook, line and sinker. We got squat and Barron is on the rocket path to confirmation with nothing to show for it, and no meaningful and intelligent review of his facially deficient record of Constitutional interpretation.
Barron cleared cloture late Wednesday and is scheduled for a floor vote for confirmation today, yet release of the “redacted memo” is nowhere remotely in sight. This framing on Barron’s nomination, irrespective of your ultimate position on his fitness, is a complete and utter fraud on the American citizenry in whose name it is being played. And that is just on the one Awlaki Memo that we already know the legal reasoning on from the self serving previous release of the “white paper” by the Administration. Discussion of the other six identified pertinent memos has dropped off the face of the earth. Booyah US Senate, way to do your job for the citizens you represent! Or not.
Personally, there is more than sufficient information about David Barron’s situational legal, and moral, ethics in the white paper alone to deem him unfit for a lifetime Article III confirmed seat on a Circuit Court of Appeal.
But, even if you disagree and consider Barron fit, you should admit the American citizenry has been ripped off in this process by the Democratically led Senate, and an Obama Administration who has picked a dubious spot to finally get aggressive in support of one of their nominees.
If Goodwin Liu and Dawn Johnsen, two individuals who had proven their desire to protect the Constitution, had received this kind of support, this country, and the world, would be a better place. Instead, Mr. Obama has reserved his all out push for a man who, instead, opted to apply situational ethics to gut the most basic Constitutional concept of Due Process. That’s unacceptable, but at a minimum we should have the benefit of proper analysis of Barron’s work before it happens.
As the kerfuffle over SB-1062 dies down, politics march on here at ground zero in Arizona. The GOP runs the key Executive Branch offices such as governor and Secretary of State but, more importantly in many respects, also the state legislature, and as long as they do state politics will continue to be dominated by clusterfucks and cleanups. But Arizona has issues with their statewide federal elected officials too. The current manifestation is not McCain, Flake, nor even the Pleistocene era brainfart known as Trent Franks.
No, today’s issue is the once and forever self proclaimed liberal Democrat, Kyrsten Sinema. The transformation of Sinema, who aggressively sold herself as progressive liberal when seeking election, to a conservative Blue Dog toadie of the Minority centrist Dem leadership has been nothing short of astounding, especially for those of us who reside in her district and voted for her in 2012. She completely betrayed her base constituents in Arizona District 9. That is mostly a story for another day though, today’s story is not about discrete policy issues, but wholesale admission of the deceptive nature of Kyrsten Sinema’s incursion into AZ-9 to start with.
The baseline is this: Thursday, longtime Arizona Democratic Congressman Ed Pastor of AZ-7 announced his decision to retire and not seek reelection in 2014. Local politicians, from seemingly forever Maricopa Board of Supervisor’s member Mary Rose Wilcox to new and fairly refreshing voices like state legislature member Ruben Gallego, were literally stepping over one another to announce they would be running for Pastor’s seat. They are almost all minorities vying to represent a solidly minority district. And this is no small thing, as most all of them have to give up their current position to do so under Arizona’s “resign to run” law.
I was asked early on Thursday, not long after Pastor’s announcement, by a friend who supports liberal Dems nationwide, about Kyrsten Sinema jumping in. I thought it was a joke question and said so. Because it was crazy talk. The joke, however, was squarely on me and her other constituents in AZ-09. Yeah, Kysten Sinema, who pledged herself to AZ-09, started lusting after AZ-07 the second it was announced available.
Not that Kyrsten Sinema (see her Twitter feed, which is a litany of everything but her contemplated district switch) or her managers/spokespeople will admit it, or even address the subject, but she was ready to walk from second one. How do we know? Because the Arizona Republic/12 News (via the excellent Brahm Resnik) got a copy of an email to Sinema’s inside staff proving it.
So, why is this a big deal? Because it shows that, for first term congresswoman Kyrsten Sinema, her own raw narcissistic ambition, in a dynamic situation, immediately trumps loyalty to her constituents Continue reading
I was at a desk, two from the rear, in the left most row, in Mrs. Hollingshead’s first grade class. Each kid had their own desk, and they were big, made out of solid wood and heavy. They had to be heavy, of course, because they were going to protect us when we ducked and covered from a Soviet nuclear strike. There were, as there were in most elementary school classrooms of the day, a large clock and a big speaker on the wall up above the teacher’s desk.
I can’t remember what subject we were working on, but the principal’s voice suddenly came over the loudspeaker. This alone meant there was something important up, because that only usually occurred for morning announcements at the start of the school day and for special occasions. The voice of Mr. Flake, the principal, was somber, halting and different; perhaps detached is the word. There was a prelude to the effect that this was a serious moment and that the teachers should make sure that all students were at their desks and that all, both young and old, were to pay attention.
There had occurred a tragic and shocking event that we all needed to know about. Our attention was required.
Then the hammer fell and our little world literally caved in.
President John Fitzgerald Kennedy had been assassinated. Shot and killed in Dallas Texas. Then without a moment’s pause, we were told that the nation was safe, Vice-President Johnson was in charge, the government was functioning and that we need not have any concerns about our own safety. We were not at war.
Twenty four some odd little hearts stopped, plus one from Mrs. Hollingshead. You could literally feel the life being sucked out of the room like air lost to a vacuum. Many of us began looking out the window, because no matter what Mr. Flake said, if our President was dead, we were at war and the warheads were coming. They had to be in the sky. They were going to be there.
Unlike the hokey color coded terror alerts, ginned up fear mongering of Bush/Cheney, Ashcroft and Ridge, and today the terroristic fearmongering of Keith Alexander, James Clapper, Mike Rogers and Dianne Feinstein, things were dead nuts serious at the height of the cold war. If President Kennedy had been killed, we were at war; the missiles were on their way. Had to be. Looking back, the school officials and teachers had to have been as devastated and afraid as we were, yet they were remarkable. They kept themselves in one piece, held us together, talked and comforted us into calm.
We had not been back in class from lunch break for long; it was still early afternoon in the west. Before the announcement was made, the decision by the school officials had been made to send us home. The busses would be lined up and ready to go in twenty minutes. Until then there would be a brief quiet period and then the teachers would talk to us and further calm the situation. Then off we would go to try to forge a path with our families, who would need us as much as we Continue reading
Former New York State governor Eliot Spitzer (D) has thrown his hat in the ring for state comptroller. He will be running against Kristin Davis (R) for the same seat, along with other less well-known candidates.
Spitzer, you may recall, resigned in 2008 as governor after it was revealed he was Client No. 9 [PDF] in a federal case in which four defendants (not named Spitzer) were charged in regards to prostitution enterprise over state lines.
Davis, you will further recall, was the so-called “Manhattan Madam” arrested and prosecuted in the sweep of the prostitution ring related to the Spitzer scandal.
The popcorn is done, you may serve yourselves and make yourselves comfortable.
When you’re done laughing, that is.
When you’ve finished wiping the tears from laughing so hard, you may also want to revisit the case that caused Spitzer to resign.
Further, you may also want to take careful note of these key dates and events:
14-FEB-2008 — An op-ed written by Eliot Spitzer, Predatory Lenders’ Partner in Crime, was published in the Washington Post. It called out the White House about its actions which thwarted efforts of states’ attorneys general to prosecute predatory lending.
14-FEB-2008 — Spitzer gave testimony this same date to the U.S. House Committee on Financial Services.
10-MAR-2008 — It was first revealed to the public that Spitzer was linked to a prostitution ring.
12-MAR-2008 — Then-governor Spitzer resigned.
14-MAR-2008 — The Fed Reserve initially agrees to loan Bear Stearns at least $25 billion; within two days, Bear Stearns is sold to J. P. Morgan for only $2/share, a mere fraction of its worth a month earlier when it traded for well over $100/share.
The 2008 financial crisis was set in motion by the cascading pressure for liquidity after Bear Stearns collapsed.
A number of folks near and dear to us looked into the origins of the investigation that caught up Spitzer; it’s been said Spitzer’s bank turned over suspicious activity to the IRS. However, in light of recent disclosures about domestic spying and datamining, it might be worth asking again whether some other surveillance tripped up Spitzer — especially after the hinky extension on the original wiretap that snagged a call related to Spitzer.
Perhaps this is why Spitzer feels comfortable attempting a political comeback.
And perhaps he knows why the rest of the prostitution ring’s clients — a substantive number of them employed by Too-Big-To-Fail financial institutions — weren’t disclosed as he was.
In any event, the New York comptroller’s race ought to be highly entertaining if not informative. Stock up on popcorn, kids, and buy some popcorn futures.
This is an op-ed; opinion herein is mine. ~Rayne
A tweet yesterday by technology-futurism pundit and sci-fi writer Bruce Sterling hinted at the problem of technology industry and journalism, with regard to politics:
The tweet was spawned by a profile in The New York Times of Newark NJ’s mayor, Cory Booker, who has used social media regularly as a community outreach tool. In addition to bestowing the inapt label “A Politician From the Future,” a critical problem in this article is the labeling of Cory Booker as appealing to “the Googly-Facebookish wing of the [Democratic] party.”
Except that Cory Booker is extremely proficient at using microblog platform Twitter, and Twitter has a significantly different demographic profile with regard to race and age. Further, Twitter’s 140-character post limitation has been much easier to use on mobile devices, fitting a mobile business model long before either Google or Facebook.
It’s not clear what Sterling thought about the NYT’s article, though in a reply he expanded and lumped together the “Twittery-Googly-Facebook” crowd, suggesting he’s missed both NYT’s error while not understanding the demographics and politics at play.
Both Sterling and NYT fail to take seriously Booker’s actions themselves; they look at the medium, not the message, which is that Booker’s deeds are like that of an old-school Democrat, the kind we used to have before the corporatist Democratic Leadership Committee co-opted the Democratic Party to serve somewhat more liberal overlords.
Booker’s use of Twitter was carefully noted by TIME back in 2010, after Booker had taken personal, hands-on action to help constituents during a snowstorm. It wasn’t a collection of photo ops for a campaign (as another mayor-candidate demonstrated in another city), but actual response to situations where elbow grease and a shovel were required.
What both NYT missed, besides categorizing Booker as belonging to the “Googly-Facebook” portion of the Democratic Party:
— Booker’s efforts with regard to his one-on-one interactions with constituents do not compare with a considerable portion of the party to which he belongs;
— His actions are highly transparent, his words sync with his deeds right there in the public forum of Twitter;
— Booker uses “big data” to make and justify decisions; “big data” is merely a contemporary expression of polling data used in the near-term past and present.
It’s not clear that Sterling notes these key points, as focused as he was on the social media component and NYT’s representation of Booker as a politician from the future. Continue reading
This is an op-ed; opinion herein is mine. ~Rayne
Once upon a time, before the rise of machines — um, before corporations took over and subsumed the Democratic Party, there were people who espoused an ideology of caring for their fellow man. Granted, some of the richest among them ended up elected to office, but they moved Americans to do the right things.
“And so, my fellow Americans: ask not what your country can do for you — ask what you can do for your country. My fellow citizens of the world: ask not what America will do for you, but what together we can do for the freedom of man. …”
This was a rising-tide-lifting-all-boats kind of Democratic Party, increasingly pro-civil rights and antiwar through the 1960s. The ideology was shaped in no small part by a stronger, more organized political left, manifest in student activism of the period a la Students for a Democratic Society (SDS). SDS in particular espoused direct action and participatory democracy, a hands-on approach to society.
Now entire generations — perhaps as much as three generations — no longer connect the liberal activism of the 1960s with the Democratic Party. Too much time has passed along with negative memes and actions actively impelled by the right linking the Vietnam War to Democratic figureheads like presidents John F. Kennedy and Lyndon Johnson, while undermining the work of other Democratic liberal champions like senators Ted Kennedy and Barbara Jordan. Ask any 20-something if they know who either Ted or Barbara were; you’ll get a blank stare most of the time.
They will, however, remember the Big Dog, Bill Clinton, who was truly Republican-Lite. He catered to business while talking a great game, ultimately undermining American democracy. As an example, his efforts to deregulate media eventually lead to a corporatist mono-culture in broadcast media. He also failed to take any real action to support unions and build the Democratic Party grassroots. He’s thought of kindly because his approach to the deficit, a more restrained approach to militarism, in tandem with the rise of the internet, led to a golden dot-com age pre-dot-com bomb when the standard of living for most Americans was still rising. He and his heir-apparent, current President Barack Obama, are now the face of the Democratic Party for a majority of Americans.
Though its original standard bearers have aged and the world has changed, the fundamental liberal ideology that coalesced in the 1960s still exists; it was a key driver behind the rise of presidential candidate Howard Dean in the 2004 election season. The left wanted direct action and participatory democracy combined with pragmatic achievement of results; barriers to their efforts had decreased because the internet was a cheap and fast facilitator. Obama’s 2008 win is owed in no small part to the dispersion of strategy and tactics embracing direct action and participatory democracy. Continue reading
As you may have heard by now, friend of this blog, and our friend at Firedoglake, John Chandley, aka “Scarecrow”, has died. Let the record reflect that I am freaking tired of being on the memorial duty. Seriously tired. If you are a participant in the discussion at this blog, or a related friend thereto, quit dying. Please. Enough.
John Chandley was a man. He stood firm and resolute on his own, in spite of being known probably to you only for blogging at Firedoglake under the pseudonym of “Scarecrow”. But Scarecrow was much more that that; never a merely a straw creature, but one who definitively stood firm for that which was righteous in the income inequality wars:
Scarecrow on a wooden cross Blackbird in the barn
Four hundred empty acres that used to be my farm
I grew up like my daddy did My grandpa cleared this land
When I was five I walked the fence while grandpa held my hand
Rain on the scarecrow Blood on the plow
This land fed a nation This land made me proud
And Son I’m just sorry there’s no legacy for you now
Rain on the scarecrow Blood on the plow
Rain on the scarecrow Blood on the plow
The crops we grew last summer weren’t enough to pay the loans
Couldn’t buy the seed to plant this spring and the Farmers Bank foreclosed
Called my old friend Schepman up to auction off the land
He said John it’s just my job and I hope you understand
Hey calling it your job ol’ hoss sure don’t make it right
But if you want me to I’ll say a prayer for your soul tonight
“Like a scarecrow in the rain”. Aren’t we all. That is the meter of life, and it is transient. Funny thing was, the real John Chandley, at least so far as I even knew him, was not transient in the least; but came out of the Berkeley swamps, cool and slow, like John Chandley’s friend and colleague at the time at Berkeley (John/Scarecrow was present at Berkeley in the moment), Mario Savio, with a backbeat hard to master.
The musical imagery here is mine; I am not sure what would be the preferred cocktail de jour of John. Before I leave, let me offer up one more paean of my own to the life of the one, and only, Mr. John “Scarecrow” Chandley”:
The world’s goin’ crazy and
Nobody gives a damn anymore.
And they’re breakin’ off relationships and
Leavin’ on sailin’ ships for far and distant shores.
You’re my brother,
Though I didn’t know you yesterday.
I’m your brother.
Together we can find a way.
Scarecrow would have, by every right that I knew him, been trepidatious in regards for our future; yet hopeful for the success and greatness that may await us all.
It is hard to tell where we all go in the living, much less where we go beyond. But never let it be said this blog does not care about the voices who were its friends and colleagues. And certainly not tonight.
RIP John “Scarecrow” Chandley.
They came for the 4th Amendment, but it was necessary for the war on drugs. They came for the 5th Amendment, but due process had to be sacrificed for the war on terror. They came for the 6th Amendment, but confrontation had to succumb to classification and secrecy. They came for the War Powers Act because Libya was “required to be protected”. Now they are coming for one of the most fundamental of Constitutional checks and balances, the Congressional prerogative of the purse.
Who are “they”? They are, of course, the ubiquitous Article II Executive Branch. And they have a never ending thirst for usurping power, all in the name of efficacy. It is always necessary, it is always an emergency, there is always a reason, for them to take the power. They are the Daddy Branch, and it is always best to trust them. So they say.
Back when “they” were the Bush/Cheney regime, liberals, progressives, and Democrats in general, had a seriously dim view of accumulation and usurpation of power in a unitary Executive. When Dick Cheney, David Addington and John Yoo contorted existing law, gave it application never intended, and manufactured legal and governmental gimmickry to accomplish stunningly naked Executive power grabs, those on the left, especially the blogosphere, screamed bloody murder. Well, that is precisely what is afoot here with the Mint the Coin! push.
Where is that principled set of voices on the left now? Things are different when it is your guy in office I guess. Because the active liberal/progressive left I see out there is currently screaming to “Mint the Coin!” doesn’t seem to realize they are calling for the same type of sham rule of law that John Yoo engaged in.. This is most curious, because “Minting the Coin!” contemplates a naked power grab by the Executive Branch of historic proportions. It is a wholesale taking of the Congressional purse prerogative under the Constitution. But, hey, its an “emergency”. Of course. It always is when the Article II Executive Branch comes to feed in the name of efficacy.
What is the value of Separation of Powers, and constriction of Constitutionally assigned powers to the branch to which they were assigned, and what is the value in insuring that an imperial Executive Branch does not usurp too many powers? Let James Madison, in Federalist No. 47 explain:
No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty, than that on which the objection is founded. The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny. Were the federal Constitution, therefore, really chargeable with the accumulation of power, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system. I persuade myself, however, that it will be made apparent to every one, that the charge cannot be supported, and that the maxim on which it relies has been totally misconceived and misapplied. In order to form correct ideas on this important subject, it will be proper to investigate the sense in which the preservation of liberty requires that the three great departments of power should be separate and distinct.
The constitution of Massachusetts has observed a sufficient though less pointed caution, in expressing this fundamental article of liberty. It declares “that the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them. ” This declaration corresponds precisely with the doctrine of Montesquieu, as it has been explained, and is not in a single point violated by the plan of the convention. It goes no farther than to prohibit any one of the entire departments from exercising the powers of another department (Publius, Federalist 47).
What is the import of the Congressional “Power of the Purse”? As James Madison said in Continue reading
The event we have all been waiting for is here in time for the Christmas Holidays! Yes, it is the long awaited news on the DOJ “prosecution” of the former Office of Special Counsel head under the Bush/Cheney regime, Scott Bloch.
As you may recall, when we last heard tangible news on the Blochhead front, it was June 20 of this year when his release restrictions were voided. The court voided Bloch’s release conditions because the DOJ had inexplicably left the case hanging in limbo after the previous guilty plea had been set aside, thus allowing Bloch to withdraw from it, all the way back in August of 2011.
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.
Well, at least that is what the information is SUPPOSED to charge. That is the crime noted in the caption, and clearly the crime contemplated by the framing, but in the key statute recitation paragraph, the controlling body of the document mistakenly charges 18 USC 1362 instead. A year and a half the DOJ has had to conjure up this smoking pile of whitewashing garbage, and they still Continue reading