April Snows Bring May Outrage: Record Flooding Ahead

[Map, national hydrologic assessment via NOAA-NWS]

Map, national hydrologic assessment via NOAA-NWS

In contrast to headline news today, the weather seems perfectly harmless — until one looks carefully at these maps.

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.

[Graphic: NOAA Nat'l Operational Hydrologic Remote Sensing Center]

Graphic: NOAA Nat’l Operational Hydrologic Remote Sensing Center

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.”) Read more

DOMA’s Day At The Supremes

RainbowNiagraFallsUPDATE: HERE IS THE AUDIO OF TODAY’S ARGUMENT

HERE IS THE TRANSCRIPT OF TODAY’S ARGUMENT

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!

Live Updates:

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!

18 USC 1119 Foreign Murder and Obama Targeted Kill White Paper

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.

The statutory language of 18 USC 1119 states:
Read more

The Cost of Bullshit: Climate Change, National Security, and Inaction

photo: toolmantim via Flickr

photo: toolmantim via Flickr

While we’re waiting for Congress and the White House to do something productive together for once, let’s recap:

•  The Department of Defense said climate change is a critical strategic concern with regard to its operations and its impact on defense efforts, based on its legislatively-mandated Quadrennial Defense Review (QDR) published two-plus years ago in 2010;

•  The State Department also said climate change is a serious threat to our national security, noted in its inaugural Quadrennial Diplomacy and Development Review (QQDR), also published two-plus years ago in 2010;

•  A who’s who of defense and diplomacy expressed their concerns about climate change and the need for urgent action, as Marcy noted two days ago; apparently whatever action has been taken so far has not impressed these experts as responsive to the threat climate change poses.

Yet if asked, the average American likely could not point to a single action taken by the U.S. government to reduce the impact of climate change.

In other words, all the effort expended and resources spent on drafting the components of the QDR and QQDR are wasted, the words published mere bullshit—more wasted government employees’ time and taxpayer money.

How much has this wordy inaction cost us?

Here’s a more specific opportunity to save taxpayer money:

…Of all military spending, energy accounts for a small proportion, roughly less than 2% of total military expenditures and 2% of total US energy usage–but is 93% of all US government energy consumption.In fact, the US military is the single biggest consumer of energy in the nation, at about 932 trillion BTU in 2009, resulting in 4% of all US carbon emissions.

Oil accounts for 78.5% of all US military energy usage (54% of that is jet fuel); electricity is 11%, direct use of natural gas comes in a bit under electricity. Direct use of coal and other sources of energy are small fractions of total usage. …

[source: TreeHugger.com, 05-MAY-2011]

The amount spent on energy surely hasn’t declined since these numbers were published in 2009.

Yet Congress and the White House have been locking horns over the sequester for some time now, looking for places to cut costs. Doesn’t it seem like any item should be ripe for examination and audit for cost-cutting if the government is the largest consumer?

Further:

…The United States is far and away the largest military spender on the planet–but you probably already knew that. How much more? In 2010 the US accounted for 42.8% of all military spending in the world (and has doubled military spending since 2001). The next nearest competitor, China, accounts for 7.3% of global military spending. The UK, France, and Russia each spend roughly 3.7%. Japan, Saudi Arabia, Germany and Italy round out the top ten. All other nations spending 25.3% combined.

In dollar terms, the grand total spent on military offense and defense in 2010 was $1.6 trillion. So based on those calculations, done by a Swedish think tank, the US outspent China by 5.86 times. …

[source: TreeHugger.com, 05-MAY-2011]

If the U.S. is the largest military spender, its energy expenditures must likewise be the largest globally. This means the U.S. military could provide the largest impact globally on climate change by urgently and robustly changing its fossil fuel consumption.

Which begs the question: are we going to stop wasting time and money on reports like the QDR and the QDDR when we’re clearly making no effort to follow the recommendations they contain by responding to climate change and its inherent national security risks?

Or are we going to save some serious money on downsizing our military’s fossil fuel consumption AND make immediate, widespread impact on climate change and national security at the same time?

We really need an answer because this bullshit is costing us a fortune in taxes and lost societal opportunities. (Hurricane Sandy cost the federal government at least $180 million dollars; it’s not yet clear how much February’s blizzard cost in tax dollars. Toronto CAN, however, spent CA$4 million on cleanup and repairs, and it was not the municipality hardest hit by the storm.)

And with each drought and mega-storm, the lack of response is costing us even greater treasure in loss of personal opportunities, homes and lives.

Obama Recess Appointments Slapped Down by DC Circuit, CFPB At Risk

What can only be described as a blockbuster opinion was just handed down by the DC Circuit in the case of Canning v NLRB, the validity of President Obama’s recess appointments has been slapped down. Here is the full opinion. The three judge panel was Chief Judge David Sentelle, Karen Henderson and Thomas Griffith, all Republican appointees (one from each Bush and one Reagan).

The immediate effect of the court’s decision is, of course, on the National Labor Relations Board (NLRB). Noel Canning was aggrieved by a decision of the NLRB and petitioned for review, the NLRB cross-petitioned to have its decision upheld. Fairly standard stuff – except the quorum on the NLRB Board was met only because of the fact Barack Obama controversially recess appointed three members in January 2012, as well as concurrently recess appointing Richard Cordray to be the Director of the Consumer Finance Protection Bureau. So, three out of the five members of the NLRB Board were, according to Canning’s argument, not validly sitting and therefore their decision was invalid as to him

Canning had merits arguments on the specific facts of his individual case, but the court found those non-compelling and proceeded on the Constitutional arguments surrounding the validity of the recess appointments. And the Court agreed with Canning that Obama’s recess appointments were invalid. The discussion by the court can be gleaned from these passages:

All this points to the inescapable conclusion that the Framers intended something specific by the term “the Recess,” and that it was something different than a generic break in proceedings.
….
It is universally accepted that “Session” here refers to the usually two or sometimes three sessions per Congress. Therefore, “the Recess” should be taken to mean only times when the Senate is not in one of those sessions. Cf. Virginia v. Tennessee, 148 U.S. 503, 519 (1893) (interpreting terms “by reference to associated words”). Confirming this reciprocal meaning, the First Congress passed a compensation bill that provided the Senate’s engrossing clerk “two dollars per day during the session, with the like compensation to such clerk while he shall be necessarily employed in the recess.” Act of Sept. 22, 1789, ch. 17, § 4, 1 Stat. 70, 71.

Not only logic and language, but also constitutional history supports the interpretation advanced by Noel Canning, not that of the Board. When the Federalist Papers spoke of recess appointments, they referred to those commissions as expiring “at the end of the ensuing session.” The Federalist No. 67, at 408 (Clinton Rossiter ed., 2003). For there to be an “ensuing session,” it seems likely to the point of near certainty that recess appointments were being made at a time when the Senate was not in session — that is, when it was in “the Recess.” Thus, background documents to the Constitution, in addition to the language itself, suggest that “the Recess” refers to the period between sessions that would end with the ensuing session of the Senate.
….
The Constitution’s overall appointments structure provides additional confirmation of the intersession interpretation. The Framers emphasized that the recess appointment power served only as a stopgap for times when the Senate was unable to provide advice and consent. Hamilton wrote in Federalist No. 67 that advice and consent “declares the general mode of appointing officers of the United States,” while the Recess Appointments Clause serves as “nothing more than a supplement to the other for the purpose of establishing an auxiliary method of appointment, in cases to which the general method was inadequate.” The Federalist No. 67, supra, at 408. The “general mode” of participation of the Senate through advice and consent served an important function: “It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.” The Federalist No. 76, supra, at 456.

Then the blow was delivered: Read more

Failed Filibuster Reform Doesn’t Only Affect Partisan Relationships

As you’ve no doubt heard, Harry Reid, with the support of a handful of Senators, has killed the effort to reform the filibuster.

DDay has come out of retirement to issue an excellent rant on what this means for democracy. [Update] Here’s Kagro X on what the deal means in practice.

But I wanted to point to this exchange–between still-Senator John Kerry, who had been squeamish but open to reform, and Jim Risch, in the former’s confirmation hearing to become part of the Executive Branch. (1:25 and following)

Risch: I know you have a deep appreciation for the Constitutional process regarding foreign relations matters. There are a lot of us who are becoming increasingly concerned about all this talk about Executive Agreements as opposed to treaties that are negotiated by the Executive Branch as contemplated by the Founding Fathers and ratified, if appropriate, by this committee and eventually by the full Senate. Can you give us your view on matters regarding Executive Agreements. How do you feel about that and the bypassing of the C–

Kerry: Well, every Administration in history,

Risch: Appreciate that.

Kerry: –Republican and Democratic alike, have entered into Executive Agreements.

Risch: You agree the better process would be to submit it to this committee first?

Kerry: It would depend–I would say to you Senator that it would depend on what the subject matter is and what the sort of scope is and whether or not it falls under traditional treaty purview or it falls under Executive Agreement purview. I can’t, I don’t want to be commenting in some prophylactic way, one side or the other, without the specific situation in front of me. But I’m confident the President is committed to upholding the Constitution I don’t think he’s … you know, I think, I’ll say this to all of you. There’s no better way to guarantee that whatever concerns you have about the President’s desire to move on an Executive Agreement would be greatly nullified or mollified if we could find a way to cooperate on a treaty or on the broader issues that face the nation. But, you know, I think there’s a lot of frustration out there that some of the automatic ideological restraint here that prevents the majority from being able to express their voice has restrained people and pushed people in a way that they have got to consider other ways of getting things done.

Risch: And that’s exactly what concerns us, Senator Kerry, is the fact that it’s okay to do this through the regular order if it gets done, but if it’s not going to get done, the ends justify the means, it’s okay to end run around the Congress. And I gotta tell you I feel strongly that that is not the appropriate way to do it. The Founding Fathers didn’t say do this if it’s convenient and it’s okay not to do it if it’s not convenient.

Kerry: Is that right. I would agree with you and I’m not suggesting that that is the standard. But I am saying to you–and I think you know exactly what I’m talking about– that there are times around here, in recent days only, and I don’t want to get deeply into it, where certain arguments that are not necessarily based either on fact or on science or anything except the point of view of some outside entity have prevented certain things from being able to be done. [my emphasis]

Basically Jim Risch was objecting to Obama’s consideration of using Executive Agreements with other countries rather than treaties. In response, Kerry suggested that if the Republicans didn’t obstruct so much using the filibuster–preventing the majority from being able to express its voice–then Obama would be more likely to use Executive Agreements.

Frankly, Risch is defending not just the right of some right wing Senators to hold up treaties, but also some backassward policies. Kerry’s nod to science suggests one of the issues here is in climate negotiations (though that’s not the only one–Obama is also avoiding Congress on some horrible IP negotiations). To the extent that national security is a reason to bypass Congress (it’s not, but Republicans have argued it is), then climate change ought to qualify as well.

But Kerry–at almost precisely the moment Democrats chose not to pursue a way to bypass Republican obstruction and as part of the process to become part of the Executive Branch–used Republican obstruction as an excuse to bypass Congress.

And so the Democrat’s refusal to make the Senate more democratic will, in turn, lead the Executive Branch to be even less democratic.

The Constitutional Argument Against the Platinum Coin Stunt

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 Read more

Scott Bloch and Roll: DOJ Takes a Holiday Friday News Dump

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 Read more

Court Dismisses Suit on Constitutionality of Filibuster

Among the hottest issues looking forward to the beginning of the 113th Congress is the status of the filibuster. Will it remain in the status quo of recent decades, the 60 vote Senate roadblock, or will there be movement to return, or at least move closer towards, a majority vote Senate?

One of the more interesting tacts in the filibuster reform fight has been an effort by a group of people, led by Common Cause, and including members of Congress such as Representatives John Lewis, Keith Ellison, Michael Michaud and Hank Johnson, to have the filibuster declared unconstitutional by a federal Article III court. They filed their complaint on May 15th of this year and issued a press release describing their effort.

Very early this morning, the effort came to a screeching halt with an order from the DC District Court dismissing the case pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. This decision was, quite unfortunately, absolutely certain to have been made, and today was so ordered by Judge Emmet Sullivan.

The plaintiffs’ goal was described by the court thusly:

They bring this suit against representatives of the United States Senate seeking a declaratory judgment that Rule XXII (the “Cloture Rule” or the “Filibuster Rule”) — which requires a vote of sixty senators to proceed with or close debate on bills or presidential nominations and a two-thirds vote to proceed with or close debate on proposed amendments to the Senate Rules — is unconstitutional because it is “inconsistent with the principle of majority rule.” In the alternative, Plaintiffs challenge Senate Rule V, which provides that the Senate’s rules continue from one Congress to the next, unless amended.

An admirable goal if there ever was one, but, alas, of the Don Quixote nature perhaps. And so the court found. The first cut was on standing, and none of the plaintiffs made it:

First, the Court cannot find that any of the Plaintiffs have standing to sue. Standing is the bedrock requirement of an Article III court’s jurisdiction to resolve only those cases that present live controversies. While the House Members have presented a unique posture, the Court is not persuaded that their alleged injury — vote nullification — falls into a narrow exception enunciated by the Supreme Court in Raines v. Byrd. And none of the other Plaintiffs have demonstrated that this Court can do anything to remedy the alleged harm they have suffered.

But standing was, by traditional justiciability analysis, the least of the plaintiffs’ concerns; the real problem lay in Separation of Powers between the branches and the historical refusal of federal courts to intrude on the Article I legislative prerogative. And so it was viewed by Judge Sullivan:

Second, and no less important, the Court is firmly convinced that to intrude into this area would offend the separation of powers on which the Constitution rests. Nowhere does the Constitution contain express requirements regarding the proper length of, or method for, the Senate to debate proposed legislation. Article I reserves to each House the power to determine the rules of its proceedings. And absent a rule’s violation of an express constraint in the Constitution or an individual’s fundamental rights, the internal proceedings of the Legislative Branch are beyond the jurisdiction of this Court.

For those reasons, Judge Sullivan dismissed the complaint. There has been no announcement yet made as to appeal by Common Cause et. al, but honesty dictates the conclusion that if you cannot get past Emmet Sullivan, you stand no chance whatsoever in the ultra conservative DC Circuit. By the way, by the time this case could hit the DC Circuit, it will be down and vacant four judges, from a slated eleven seats to only seven filled seats, due to the taking of senior status by Chief Judge David Sentelle, and there is little to no movement or concern by Barack Obama on ameliorating the situation.

The concerns of the DC Circuit health aside, the filibuster lawsuit is going nowhere. Remedy for the Senate blockage will have to come from within the Senate itself, pursuant to Senate Rules modification. As Joan McCarter at Daily Kos reported on Monday, there is some evidence Harry Reid would have the 51 votes necessary to get it done.

Let’s hope Harry Reid has the famed pugilistic cajones he likes to claim, and sees to it that the Senate is returned to a functioning body. There are not just the legislative goals that hang in the lurch, but also a full slate of critical Executive Branch nominations for the coming new term for Obama and, of course, the state of emergency in the Federal Judiciary. Harry Reid and the Senate Democrats can solve that if they have the guts. They can expect nothing but spiteful obstructionism from the Senate Republicans after the election and the “fiscal cliff” showdown.

The Democrats need to govern in the absence of a responsible GOP effort to do so. It starts with fixing the filibuster problem.

DiFi and the Silly Season of Senate Committee Music Chairs

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.

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