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
A little over an hour ago, there was some rather notable news tweeted out by CNN:
Intel cte’s @SenFeinstein will give up the chair and move to Judiciary, source tells @CapitolHillCNN. @SenatorReid to announce today
I have talked to both sources at both the Senate Judiciary Committee and Personnel offices and have yet to hear a denial. This is, then, significant news as to a complete reshuffling of key Majority Senate Leadership assuming it continues to bear out.
First off, a tenured Senator like Feinstein does not leave a high value Committee Chairmanship without another, or something higher, on the offer. CNN said she it is to “move to Judiciary”. But DiFi has long been a member of the SJC, that can only portend she will then become Chairman of Judiciary.
Ryan Grim at Huffington Post has also picked up this shuffle, and beat me to the punch by a few minutes:
If Feinstein does take over leadership of the Judiciary Committee, that could ease the passage in the Senate of a renewed assault weapons ban, which was passed under President Bill Clinton in 1994 but expired in 2004. The shooting rampage on Friday in Newtown, Conn., in which 20 children and six adults were murdered by a gunman with a military-style assault weapon and high-capacity magazines, has renewed calls for stricter gun control legislation.
On Tuesday, speaking in the Capitol before the party’s weekly caucus lunch, Feinstein told reporters who had asked her whether she will jump to Judiciary, “Keep tuned. I think it is [going to become open], and I think it’ll happen.”
On Monday, Sen. Daniel Inouye (D-Hawaii) who was the chairman of the powerful Senate Appropriations Committee, passed away at the Walter Reed National Military Medical Center. Now that Inouye’s post is empty, Sen. Patrick Leahy (D-Vt.) is rumored to be looking at taking over Appropriations — in turn opening up the leadership slot at Judiciary. Feinstein could then move from her current spot as chair of the Senate Intelligence Committee to chair Judiciary.
That is good, fast reporting and coincides with what I can discern. And Appropriations Chair is a long time traditional home for the Senate Pro-Tem, which Pat Leahy became with yesterday’s passing of Inouye.
So, what about SSCI? Next in line would, by seniority, be Jay Rockefeller. But, as Mother Jones’ Nick Baumann pointed out, Rockefeller gave up leadership at Intel nearly three years ago to take over the Commerce, Science and Transportation Committee helm, and there is no reason to think he would double back. That gave a brief glimmer of hope that Ron Wyden might get the nod at SSCI, but HuffPo’s Grim, in a tweet, thinks he is more likely to take over the helm of the Senate Energy and Natural Resources Committee for the outgoing Jeff Bingaman of New Mexico, who did not seek reelection. That would mean the next senior Democrat on SSCI as Barbara Mikulski of Maryland.
Now, if I were Wyden, I would want the SSCI job over Energy. It is likely most progressives would like him there as well, which is why the smart money likely says Reid talks him into the Energy Chair.
So, we are into the Congressional equivalent of Formula One silly season; i.e. the end of the year shuffling of drivers before the season is really over. The one real wildcard here is Wyden.
As Marcy appropriately pointed out, there was a LOT of news dumped in the waning moments and bustling milieu of a Friday afternoon; not just pending a holiday weekend, but with a press corps still hung over from, and yammering about, the empty chairs and empty suits at the GOP National Convention. I have some comments on the cowardice of justice by DOJ on Arpaio, but will leave that for another time.
But the declination of prosecution of Joe Arpaio was not the only Arizona based story coming out of the Obama Administration Friday News Dump. Nor, in a way, even the most currently interesting (even if it ultimately more important to the citizens of Maricopa County, where Arpaio roams free to terrorize innocents and political opponents of all stripes and nationalities). No, the more immediately interesting current story in the press is that of Suzanne Barr, DHS and Janet Napolitano. Not to mention how the press has bought into the fraudulent framing by a Bush era zealot to turn a garden variety puffed up EEO complaint into a national scandal on the terms and conditions of the conservative, sex bigoted, right wing noise machine.
And what a convoluted tale this is too. It is NOT what it seems on the surface. The complainant referenced in all the national media, James Hayes, had nothing whatsoever to do with the DHS official, Suzanne Barr, who just resigned. There is a LOT more to the story than is being reported. And there are far more questions generated than answers supplied. What follows is a a more fully fleshed out background, and some of my thoughts and questions.
You may have read about this DHS story already, but here is the common generic setup from the mainstream media, courtesy of the New York Times:
The accusations against Ms. Barr came to light as part of a discrimination lawsuit filed by James T. Hayes Jr., a top federal immigration official in New York, against Ms. Napolitano, contending that he had been pushed out of a senior management position to make room for a less-qualified woman and then was retaliated against when he threatened to sue. The lawsuit also accused Ms. Barr of creating “a frat-house-type atmosphere that is targeted to humiliate and intimidate male employees.”
The resignation — amid a three-day holiday weekend sandwiched between the Republican and Democratic national conventions — came at a time when the public was likely paying little attention to events in Washington. But Representative Peter T. King of New York, the Republican chairman of the House Homeland Security Committee, released a statement in which he vowed to continue to scrutinize the matter when Congress returns from its August break.
“The resignation of Suzanne Barr raises the most serious questions about management practices and personnel policies at the Department of Homeland Security,” Mr. King said, adding that the committee would review “all the facts regarding this case and D.H.S. personnel practices across the board.”
The Complaint of James T. Hayes, Jr: So, Suzanne Barr really must have laid one on this Jimmy Hayes chap, right?? Uh, no. Not really. Not at all. Let’s take a look at the actual complaint as legally pled. These are my thoughts, as a Continue reading
The Patient Protection and Affordable Care Act (ACA), otherwise popularly known as “Obamacare” had a bit of a rough go of it this week at the Supreme Court. Jeff Toobin called it a train wreck (later upgraded to plane wreck). Kevin Drum termed it a “debacle” and Adam Serwer a “Disaster“.
Was it really that bad? Considering how supremely confident, bordering on arrogant, the Obama Administration, and many of the ACA’s plethora of healthcare “specialists”, had been going into this week’s arguments, yes, it really was that bad. Monday’s argument on the applicability of the tax Anti-Injunction Act (AIJA) went smoothly, and as expected, with the justices appearing to scorn the argument and exhibit a preference to decide the main part of the case on the merits. But then came Tuesday and Wednesday.
Does that mean the ACA is sunk? Not necessarily; Dahlia Lithwick at Slate and Adam Bonin at Daily Kos sifted through the debris and found at least a couple of nuggets to latch onto for hope. But, I will be honest, after reading transcripts and listening to most all of the audio, there is no question but that the individual mandate, and quite possible the entire law, is in a seriously precarious lurch.
Unlike most of my colleagues, I am not particularly surprised. Indeed, in my argument preview piece, I tried to convey how the challenger’s arguments were far more cognizable than they were being given credit for. The simple fact is the Commerce Clause power claimed by Congress in enacting the individual mandate truly is immense in scope, – every man, woman and child in the United States – and nature – compelled purchase of a product from private corporate interests. Despite all the clucking and tut tutting, there really never has been anything like it before. The Supreme Court Justices thought so too.
I have no idea what kind of blindered hubris led those on the left to believe the Roberts Court was going to be so welcoming to their arguments, and to be as dismissive of the challengers’ arguments, as was the case. Yes, cases such as Raich and Wickard established Congress could regulate interstate commerce and Morrison and Lopez established there were limits to said power. But, no, none of them directly, much less conclusively, established this kind of breathtaking power grant as kosher against every individual in the country.
Despite the grumbling of so many commentators that the law was clear cut, and definitively Continue reading
Well, okay, Richard Carmona has been formally announced for the race since early November of 2011, but with yesterday’s dropout by the only other major Democratic contender, former state Democratic Party Chair Don Bivens, the field is effectively cleared for Carmona.
Bivens was gracious and indicated clearly he is getting out for party unity:
“The continuing head-to-head competition of our Democratic primary is draining resources that we will need as a Party to win the U.S. Senate race in November,” he wrote in a statement. “While I am confident we would win this primary, the cost and impact on the Party I’ve spent my life fighting for could diminish our chance to achieve the ultimate goal: winning in November.”
Bivens had a stellar third quarter in fundraising, but momentum quickly shifted to former Surgeon General Richard Carmona when he entered the race in November. Carmona had the backing of much of the national Democratic establishment.
In a joint statement with Democratic Senatorial Campaign Committee Chairwoman Patty Murray (Wash.), Senate Majority Leader Harry Reid (D-Nev.) wrote that he was “heartened that Don has decided to focus his time and energy” on President Barack Obama’s re-election and on Carmona’s campaign.
This is actually fairly exciting news here in the desert, as the party, both in state and nationally, can coalesce around Carmona and focus on the necessary effort to insure very conservative Republican Congressman Jeff Flake, the certain nominee for the GOP, does not win. The race is for the seat of the retiring Jon Kyl and, for the first time since Dennis DeConcini left, the Dems have a serious chance of gaining a Senator in Arizona. A goal not only Continue reading
Right about this time last exactly one week ago, in relation to predictions of Ruth Bader Ginsburg’s retirement, I was describing the derelict judicial policy regarding nominations and confirmations that has characterized the White House of Barack Obama since he took office:
One of the other hallmarks of Obama’s Presidency is also, save for his two Supreme nominees Sotomayor and Kagan, dereliction of duty and attention to judicial policy and nominee confirmations. The state of rot and decay ongoing in the liberal federal judiciary is shocking, and Obama literally has abandoned the cause.
The all too predictable response to any such suggestion from the blindered Obama apologybots was “but but but Republican obstruction”. However said predictable refrain from Obamabots and party hacks belies the obvious fact that Republican obstruction has nothing to do with the lack of attention to nominations by Obama. As I said many times, here in June of 2011:
…it is hard for an administration to get a confirmation if it does not make nominations. Take federal judges for instance, for most of the past two years there have been around a hundred vacancies on the Circuit and District courts; Mr. Obama has rarely had nominees for more than half of them. This is simply federal administrative incompetence, and it takes a heavy toll in the hallways and dockets of justice.
Friday Joan Biskupic, in her first major piece at her new perch as head legal editor for Reuters, laid out a scorching case against the feckless and derelict policy by Obama on nominations by focusing on the most important Circuit Court of Appeal, the DC Circuit:
Obama’s failure to put anyone on the 11-judge D.C. Circuit, where three vacancies now exist, reflects both rising partisanship and Obama’s early priorities.
“That would leave the second most important court in the land without the kind of balance he might have achieved,” Gerhardt added.
Of the eight active judges on the D.C. Circuit, five are appointees of Republican presidents, three of Democratic presidents. Although the court has 11 members, it routinely hears cases in three-judge panels, assigned randomly to cases, as do other federal appeals courts throughout the country.
Two of the three openings on the D.C. Circuit have existed since Obama took office. Obama nominated Caitlin Halligan, a former New York state solicitor general who is now general counsel for the Manhattan District Attorney’s office, in September 2010.
The DC Circuit is the most important circuit court because it hears the appeals on all the most important cases emanating from the seat of our federal government. If it involves Executive Continue reading
The UPI has an article up with the startling headline “Ruth Bader Ginsburg stepping down in 2015”. The article, which is really more of a pondering question, is bylined today by Michael Kirkland and paints the scenario of a Ruth Bader Ginsburg retirement in 2015 so that Obama has sufficient time left in his second term to appoint and confirm a successor.
Although referenced rather obliquely in his article, Kirkland’s basis is premised entirely on the thoughts and predictions of SCOTUS, AND SCOTUSblog, longtime pro Tom Goldstein in a SCOTUSblog post he did last Tuesday, February 14th. Goldstein may be only one voice thinking out loud, but he carries the bona fides to warrant serious consideration here.
Goldstein points to the confluence of Ginsburg’s age, health, and personal career tracking with that of Justice Louis Brandeis. And the thought that Ginsburg will want to see that her replacement is chosen by a Democratic President. Goldstein’s thought process, originally laid out in the comprehensive February 14th entry at SCOTUSblog, is worth reading. Assuming Obama is reelected, which is still a pretty decent bet at this point (certainly capable of changing though), it is hard to find fault with Goldstein’s logic; in fact, it is rather compelling. I also agree with Tom that none of the current conservative bloc, including swing man Tony Kennedy, are going anywhere anytime soon.
Where I do differ from Goldstein, however, is in his prediction for what would transpire upon the theorized Ginsburg tactical retirement:
Assuming that President Obama is re-elected and that Justice Ginsburg does retire at some point in the next Administration, who will be the next nominee? One thing is certain: it will be a woman. It is inconceivable that a Democratic administration with any reasonable choice would cause the gender balance of the Supreme Court to revert to seven men and two women. Relatedly, appointing three women in a row to the Court is excellent politics.
President Obama will also have a strong desire to pick an ethnically or racially diverse nominee. It would be disappointing for the nation’s first African-American President to make two white appointments, leaving the Court with seven white members. A more diverse Court is a better legacy. Given that the President already appointed the first Latina Justice, most likely is an African-American or Asian-American nominee. That said, I think race and ethnicity are plus factors, rather than an imperative like gender.
I am not sure I buy Goldstein’s certainty of yet another female Supreme Court nominee from Barack Obama. I am just not convinced Obama appoints a third woman in a row, color or not. It sure makes it easier that it would be to fill a “female seat”, Ginsburg’s, I guess, and Obama clearly wanted to see three women justices on the court. But he crossed said threshold, and knowing one of them may not be there so long into the future likely played into the strength of his desire to appoint a second woman after Sonia Sotomayor. Such is quite a different thing from having an abiding determination to insure there are always three women on the Supreme bench.
Further, it really restricts the pool of potential nominees and plays into a plethora of counter Continue reading
Out of the blue this morning, the Obama Administration has released the OLC opinion it relied on in making last weeks recess appointments of Richard Cordray to the CFPB and others to the NLRB. Several legal analysts and pundits have lobbied publicly and privately for the memo, which almost certainly existed, to be released, maybe the most cogent of the public pleas being made by Jack Goldsmith at Lawfare. Honestly, I agreed fully with Jack, but since the White House was reticent to admit it even existed, and since (as Josh Gerstein pointed out) a 2nd Circuit opinion from 2005 likely meant it was not subject to FOIA, I was not sure how soon it would meet public eyes.
Well, here it is in all its glory.
While some had suggested the reason the White House would not discuss whether there even was an opinion, much less release it, was that the OLC did not support the President’s ability to so recess appoint. I never particularly gave this much credit, even though Obama clearly is not above acting contrary to OLC advice, he did exactly that regarding the Libya war action. And, indeed, here the OLC did support his action in their 23 page opinion.
Although the Senate will have held pro forma sessions regularly from January 3 through January 23, in our judgment, those sessions do not interrupt the intrasession recess in a manner that would preclude the President from determining that the Senate remains unavailable throughout to “‘receive communications from the President or participate as a body in making appointments.’” Intrasession Recess Appointments, 13 Op. O.L.C. 271, 272 (1989) (quoting Executive Power—Recess Appointments, 33 Op. Att’y Gen. 20, 24 (1921) (“Daugherty Opinion”)). Thus, the President has the authority under the Recess Appointments Clause to make appointments during this period. The Senate could remove the basis for the President’s exercise of his recess appointment authority by remaining continuously in session and being available to receive and act on nominations, but it cannot do so by providing for pro forma sessions at which no business is to be conducted.
As I previously have noted, the entire “block” of the President’s recess appointment power is predicated upon the Article I, Section 5 provision in the Constitution that “[n]either House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days”. And, so upon what exactly does the OLC hang their hat on that the three day periods do not prevent a “recess” within the meaning of a President’s Article II, Section 2, Clause 3 recess appointment power? Mostly some reasonably thin quotes from GOP Senators that were not Continue reading