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Tuesday, March 28, 2006

Scalia: "F*** You"

What can I really say about this? He's obviously incredibly smart, but he lacks common sense and seems to have serious emotional issues.

BOSTON, March 27 (UPI) -- U.S. Supreme Court Justice Antonin Scalia startled reporters in Boston just minutes after attending a mass, by making a hand gesture some consider obscene.

A Boston Herald reporter asked the 70-year-old conservative Roman Catholic if he faces much questioning over impartiality when it comes to issues separating church and state.

"You know what I say to those people?" Scalia replied, making the gesture and explaining "That's Sicilian."

The 20-year veteran of the high court was caught making the gesture by a photographer with The Pilot, the Archdiocese of Boston's newspaper.

"Don't publish that," Scalia told the photographer, the Herald said.

Friday, March 24, 2006

The Lawless President

George W. Bush thinks that any legislation from Congress is only what he makes of it. Anyone arguing otherwise is either misinformed or lying. For this, George W. Bush is the biggest threat to our nation since King George.

George Bush again made his disdain for the rule of law clear when he signed the reauthorization of the USA PATRIOT Act. As Presidents have done in the past, Bush attached a Signing Statement describing his interpretation of the law. Unlike past Presidents, George W. Bush has not used these Signing Statements to give his interpretation of ambiguous parts of the law but rather to assert that he will freely and openly violate the law. He justifies this using a ludicrous reading of part the Constitution while conveniently ignoring another part -- the part where he has to faithfully execute the laws of Congress. Bush has taken the use of a signing statement, a rare tool used only when necessary to clarify ambiguous legislation, and has transformed it into an instrument of tyranny. Before you think that I am guilty of hyperbole, consider this: From President Monroe through Clinton, 332 signing statements were issued. Bush is already up to 435. To Bush, the signing statement is a way to implement his radical "unitary executive" agenda that undermines our democracy and pushes this great Nation towards de-facto tyranny.

Under the reauthorized PATRIOT Act, the executive must provide information to Congress, on a specific timetable, as to how often the FBI uses its expanded powers under the law. This makes sense. Congress requires this study in order to know if the additional power that they have granted the Executive is truly justified. In other words, Congress requires the Executive to provide this information so that Congress can properly do its Constitutional duties -- to legislate.

Bush's signing statement states that he will not comply with the reporting requirements if he feels that it would "impair foreign relations, national security, the deliberative process of the executive, or the performance of the executive's constitutional duties." This essentially says "Thanks for the increased powers, I'll take 'em, but I'm not telling you how I use them so that Congress can know whether its legislation is proper."

The highly flawed, anti-democratic Unitary Executive theory is to blame. This theory posits, in part, that the executive can determine the scope of the power granted to him in the Constitution. The real problem here is that Bush is clearly violating the intent of Congress based only upon the legal interpretation of his counsel, who are by their very nature advocates seeking to gain as much as they can for their client. Such is the inevitable nature of attorneys. That's why here in the USA we have a judiciary branch that interprets the law. That way an independent branch of government interprets the scope of the constitutional powers given to the other branches of government, which also works as a check on the power of the other branches. The judiciary, of course, gets to interpret the scope of their own powers, but the judiciary's scope -- judicial review -- was long ago defined, for the most part. Further, the power of appointment along with other checks keep the judiciary in line. My point is that if the Executive can interpret the scope of his own power, then White House counsel will continue to push that line because all attorneys want to interpret the law in the light that most favors their client. The end result of this pushing will be de-facto tyranny. The judiciary and the Congress will exist only as tokens and will be subject to the absolute power of the "Unitary Executive."

The Unitary Executive theory only works if you accept that the Framers intended the scope of the executive's power to be determined by appointed White House counsel who owe their jobs to the President. It only works if you ignore Article II, Section III of the Constitution that states that the Executive "shall take Care that the Laws be faithfully executed." It only works if you think it's just and right for the President to willfully disobey laws of Congress, an offense that would put normal individuals behind bars. It only works if you think that the separation of powers which so clearly underlay our entire Constitutional democracy are somehow bad.

I guarantee you that the GOP and their cohorts in the Federalist Society would not be such huge supporters of the Unitary Executive theory if we had a Democratic President. It's but a partisan tactic designed for short-term political gain. But the ramifications are far too large to indulge in such schemery. New York University law professor David Golove considers this theory to be a "mind-bogglingly expansive conception" of executive power. The only way to turn back the tide and save our democracy is to oust all Republicans everywhere from office this fall. Enough is enough and the Republican Party has abused the public trust and the Constitution enough.

Finally, I leave you with this. If President Bush really believed that he needed to ignore the PATRIOT ACT's reporting provisions, he could have refused to sign the law. The veto power is an actual Constitutional power granted to the President and is a way for him to protect his interests in "foreign relations, national security, the deliberative process of the executive, and the performance of the executive's constitutional duties." The reason he did not take this lawful alternative is because President Bush is the lawless President. As Bush once said (and I only wish I was making this up): "If this were a dictatorship, it'd be a heck of a lot easier, just so long as I'm the dictator."

Thursday, March 23, 2006

People of Reason, Men of Results, and the Man with the Power

In Georgia v. Randolph, a 5-3 decision decided yesterday, John Roberts stood with Scalia and Thomas to argue for limited Fourth Amendment protections. The court's four "liberal" Justices -- liberal only when considered relative to the far-right bloc of Roberts, Scalia, Thomas and Alito (who did not get to vote in this case due to his too-recent appointment to the court) -- sided with the conservative, yet comparatively moderate Justice Kennedy in the majority. The Court held that warrantless searches of home executed with the consent of one co-occupant violate the Fourth Amendment when another co-occupant expressly refuses police entry at the front door.

This heartening case is noteworthy in muliple aspects.

First, it was Chief Justice Roberts' first dissent. Predictably, he showed himself to be a strong ally of the Scalia/Thomas wing of the bench, as I told everyone on this blog would be true 7 months ago. He also showed himself to use crass politics as a way to distract people from the way he was undermining our rights -- the classic "shell game" trick of far-right conservatives. Roberts argued that the majority's decision would harm women and help domestic abusers by making it harder for police to enter their homes. This is not only a false argument, but it is a Rehnquistian results-oriented one that implores the Court to disregard the law in order to "punish the bad guy." The argument is false because if there really is domestic abuse apparent, the police can constitutionally enter to protect the woman without going upstairs to search for drugs (such as is the case here.) Roberts deceptively acts as if a search and an entrance to protect a victim of abuse are the same thing. The argument is further false because the police can still search upon probable cause or upon exigent circumstances, something that is likely to exist if abuse is clear. Roberts is no champion of women's rights and I trust that we will see further examples of this in the future that will make his dissent in this case look like utter hypocrisy.

Second, the far-right conservatives continued their long march to divorce the warrant clause from the Fourth Amendment. As a general rule, police searches without a warrant violate the Fourth Amendment. Any reasonable search without a warrant must fit into one of the many exceptions to the warrant clause. When a resident in his own home explicitly and unambiguously denies police entry, they should have to have either 1) a warrant or 2) probable cause. These exceptions have already been expanded too far and the Court did a great thing in denying yet another exception, especially when it would have led to more intrusive searches in the privacy of one's home.

This situation is distinguished, and rightfully so, from when a resident would have denied police entry but wasn't around to do it. It's ok for a person to allow the police into their home to search, even if there are co-occupants not nearby to consent as well, but the situation changes drastically when the police receive an explicit denial from a co-occupant. Such is at the very core of the Fourth Amendment. In this modern era of alternative living situations, the idea that the permission of one co-occupant is enough to make a search reasonable despite the explicit denial of all others in the home would severely erode the Fourth Amendment. Where would this line be drawn? Would it be ok for children to consent to home searches? For the elderly? For the mentally-challenged? For the vindicitve roommate?

The police are still free to search these homes; they just need to have probable cause or a warrant. Without either, the adoption of the dissent's "free pass" theory would lead to massive fishing expeditions and a marked decrease in the protections and privacy of the home. When you consider that the Supreme Court has already established that consent searches are valid even if the one who gives consent is not a true co-occupant as long as the police reasonably believe that person to be a co-occupant, the results of the dissent's position are frightening. Not only can strangers give permission for police to enter your home, but now they could do it over your explicit objections while you stand in the front door. Fortunately for those of us who love liberty and despise tyranny, the majority did not adopt this radical position.

Finally, and most importantly, the reality that the Supreme Court is now controlled by the whims of one man displayed itself to the public. That man is Justice Kennedy. Although the so-called "liberals" are really moderates who often side with the conservatives (Souter and Ginsburg are simply not liberal in their view of the criminal justice system, for example), and we cannot yet be certain of the idiosyncrasies of Alito and Roberts, the situation for the most part is a court divided 4-4-1. In the 90s we had a court divided 4-3-2 with O'Connor and Kennedy in the majority for most decisions. As a result, these two Justices alone literally rewrote entire swaths of Constitutional Law. With O'Connor gone, the balance of power lies only with Kennedy.

Justice Kennedy is a Republican appointee and lifelong conservative. People remember his protection of the right to choose in Casey, his unilteral decision to allow future gerrymandering claims despite the lack of a standard and his opinion in Lawrence v. Texas, and assume that Kennedy is some kind of liberal. Not true. He's also been a vehement opponent of affirmative action, a supporter of ambiguous "partial birth" abortion laws, and violated his oath of office when he wrote a patently fraudulent opinion in Bush v. Gore. (Note -- although Kennedy is not listed as the author of the unsigned majority opinion, is the author according to the book Closed Chambers.) The fact that this great nation's future lies in the hands of this man gives me no comfort. We deserve a court of nine reasonable people, unencumbered by politics and bound only to the law. The polarizing events of recent times have effectively given us a court of one. The results are usually going to be bad and victories such as Georgia v. Randolph should not get us too excited.

FINAL NOTE: I want to thank my friend, colleague and study partner James Fox Corpuz for his kind mention of this blog in his sublime column "The Procrastinator," featured in the official newspaper of USF School of Law, The Forum. James singlehandedly is responsible for The Forum's publication of my article on the horrible consequences of the Alito nomination. James is the rare person who is funny in person and in writing. As longtime readers of this blog will assure you, I am incapable of inserting humor into blogging. Also I hear James plays pretty mean basketball for a short dude. I pray for the day that James sees it fit to unleash The Procrastinator on the web and allow the entire planet access to his irreverent thoughts.

Tuesday, March 14, 2006

An Open Letter to Al Gore

I'm mailing a copy of my letter below to Mr. Gore himself, but I felt that my opinions were relevant enough to re-post here. I urge others to write Al Gore as well and urge him to run for President.

Dear Vice President Gore,

I write this letter to you today as one patriot to another. Six years ago, I voted in my first Presidential election and proudly voted for you. I have since remained one of your biggest supporters. You are a great man who has changed the world for the better. The situation today has led me to conclude that if you do not run for President in 2008, our nation and perhaps the entire planet may be doomed. Although there will be immense personal costs, I beg you to seek the Democratic nomination for President in 2008.

We are living in a world on the brink of a catastrophe. Global warming is out of control and the Republicans controlling Congress and the White House are doing their best to ignore it. Scientists seem to be in complete agreement that we are on a path for destruction unless we change our harmful policies. The GOP prides itself on a distrust of science that coincidentally justifies their deplorable record of caving to corporate polluters at all costs. While the Democratic party's record is not without blemishes, you and I both know that we Democrats are the only ones who can turn the tide and prevent an environmental disaster. The reason is that Democrats are beholden to the people, not special interests.

You are seen by people of my generation as the foremost champion of environmentalism among politicians. Your book Earth in the Balance is a stunning example of the kind of leadership and foresight that our nation requires. The 2008 Presidential election may very well be the last chance that we have to reverse the damage humans have done. Another Republican President, or even a misguided Democrat President, would likely put the planet on an irreversible course for doom.

Not only do I believe that you are by far the best person for the job, I believe you are the only Democrat capable of appealing to the broad cross-section of America that is necessary to win a national election. There are two main reasons for my belief. The first, less important reason, is your Southern heritage. The Democrats will never win national elections if we concede the entire South to the Republicans. The second, more important reason, is your ability to freely speak your mind. In recent years, you have consistently been ahead of the curve when it comes to pointing out the problems caused by the Bush administration. When craven Democrats feared to take a stand against the Iraq war, you were there to tell the world the fallacy to come. When people feared to point out the constitutional violations implicit in domestic warrantless wiretapping, you were there to expose the truth. The media and the Republican machine tries to spin your frankness as a negative. They are dead wrong. No reasonable American sees your truth-telling as a negative. The American people want a strong leader who is not afraid to tell it likes he sees it. They want someone just like you.

I am currently in my second year at University of San Francisco School of Law. I have decided to become a public defender and dedicate my life to helping those less fortunate. I have begun to wonder, however, if the United States will be the kind of place in which I can raise children. The abominable environmental policies of the Bush administration combined with their flagrant disregard of the Constitution causes me great concern. I feel that you provide our best, and perhaps last, hope to change the course of history and ensure that this great nation thrives well into the next century. I realize that you have been in public service for many years and that you deserve to pursue happiness in other channels. But the imperatives of our nation are calling you back into service. Should you run for President, I will do anything and everything in my power to help you get elected.

Mr. Gore, the United States and the world at large desperately needs your leadership in these troubled times.

Friday, March 10, 2006

A New Chapter

Some of you may have noticed that I have not been posting much lately. There are three reasons for this: 1) a lack of fresh news combined with the fact that I have already written about many of my views, 2) a lack of time due to a particularly intense semester at law school and 3) my desire to only write posts that present fresh ideas arrived at through thoughtful deliberation. This third reason demands further explanation.

Nearly all of the views I've written about have been arrived at only after a long, deliberative process. Sometimes it's easy to express these long-held views as they apply to new situations that arise in the news. Other times, it's not so easy. Often situations are so complex and involve such a wide array of issues that it would be intellectually dishonest to begin writing about them as if I were fully informed. One example would be the recent flack over the United Arab Emirates control of U.S. ports. Many liberals thought Bush + further weakening of port security automatically made this a horrible decision. But those same liberals allied themselves with racists on the right who just didn't want people with brown skin running U.S. ports. Sometimes these kinds of coalitions are inevitable due to the multitude of issues involved in a given situation. Other times these coalitions indicate that one side or the other is leaping to a conclusion without properly considering all the issues involved. My opinion on this matter was never that emotional nor interesting to merit an article. I think that as long as we are going to allow foreign countries to control our ports, we shouldn't discriminate on the basis of the race of the country. My personal wish would be to make the operation of our ports a government enterprise considering the massive safety ramifications. On the other hand, I don't really know enough about the finer points of port management to honestly say that my proposal is the best idea.

My larger point is that I have come to dislike knee-jerk reactions to complicated social problems. Those problems which have an easy solution -- the problems of SUVs, the unconstitutionality of the death penalty, the horrible failures of Bush during Katrina, the deplorable records of Justices Roberts and Alito -- these problems provide me the best opportunity to speak my voice. For I can speak it knowing that I have been intellectually honest. The problem for me is that I have written about most of the easy issues for which I am duly informed.

Blogging is, in a way, very easy when someone like George Bush is in charge. His absolute moral bankruptcy -- reflected by his aggressive corporate agenda, his war on the environment, his failure to separate church and state and his illegal war in Iraq -- all provide clear examples of what's obviously wrong. At the same time, I find these kinds of posts to often be the "low-hanging fruit," i.e., obvious to spot and therefore somewhat uninteresting. I've tried to provide a unique angle on this blog and have stayed away from posts that merely restate the obvious. An example of this would be the recent video that proved that Bush knew that the levees in New Orleans would not last. But I said the same thing months ago due to the enormous amount of circumstantial evidence; there's nothing that newsworthy about this video because the logical conclusion was already clear to all those willing to think about it. As such, I found no reason to write about this unless I had something original to add.

My point is only to explain my lack of fresh posts and to explain the limited amount of posts that will come in the future. Part of my training to become a lawyer involves the careful process of crafting law. Some people who I admire very much, such as Justice Brennan, at times became too results-oriented and harmed the integrity of the judicial process. (I plan to write on this issue in a future post.) I certainly do not want to stray down that path. I believe liberalism is the correct ideology because it is more fundamentally sound and reasoned than conservatism. Similarly, I'd like the quality of my posts to outweigh the quantity of my posts. Mainstream blogs rely upon daily posts, often several daily posts. This blog will never become one of those because I lack the time necessary to write duly informed comments on a daily basis. (Most mainstream bloggers do as well, so they write crap instead. I digress.) Nonetheless, the War on Corporate Evil must continue. Expect new posts weekly, or perhaps bi-weekly, but expect the posts to be more thorough, unique and thoughtful.

Wednesday, March 01, 2006

Their Wealth Matters More Than Your Health

Tomorrow, the GOP-dominated House of Representatives will vote on H.R. 4167, the "National Uniformity for Food Act." This bill will require all state regulation of food to be identical to the federal government's regualtion of food products. In other words, states will be unable to enact any food safety laws beyond those mandated by the FDA. The bill has yet to receive a hearing, but the GOP wants to vote anyways.

This is a horrible idea for two reasons. First, this bill unneccessarily tramples on the principles of federalism. States have an interest in the safety of their food and should be allowed to develop standards specifically targeted towards the residents of particular states. Alaska, for example, has a law in place to require genetically engineered fish to be labeled as such. State officials presumably deemed such a regulation especially important for their state because of the high level of fish consumption in Alaska.

Second, and more important, this will clearly result in lower food safety standards and increased risk to consumers. 80% of all food safety regulations are currently enforced at the state level. Having two levels of enforcement necessarily causes more regulation to be enacted. More regulation means more standards which means more lives will be saved. The existence of 51 independent food safety agencies serves as checks on the FDA and on each other. If the FDA isn't regulating something due to ineptitude, conflicts of interest or an agressive pro-business mindset, one or more of the states will pick up the slack and regulate the problem.

Further, the states will start to look around and see what other states are regulating. California may like a safety regulation from Montana and adopt it as their own, even though California never would have come up with it on its own and the FDA doesn't have a similar regulation in place. The states serve as laboratories for new regulations that can result in new scientific revelations that the FDA alone would not have made.

Obviously, the Republicans in the House want to do this because they do anything and everything that wealthy corporations want. The health of the common man means nothing to these old white men who desire nothing more in life than money and power. They would rather see 5 children die than have a corporation pay a million dollars to comply with a state food safety regulation. To them, it's just another cost-benefit analysis, with the people paying the costs and the corporations reaping the benefits. The supporters of this bill include the mega-rich Grocery Manufacturers of America. The interest groups involved have donated millions, mostly to Republicans, in recent elections.

It is imperative that we do anything we can at this late stage. E-mail your Representative using this easy link or give them a phone call at (202) 224-3121. I'll post a follow up later this week and let readers know whether the GOP House really thinks that their wealth matters more than your health.