Tag Archives: rights

Wrong Way to Punish the FBI?

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The Wall Street Journal‘s editors are concerned that doing away with FISA’s Section 702 would be the wrong way to punish the FBI.

I agree. But the editors are missing the point. They too narrowly justify 702 with this:

Congress created Section 702 after 9/11 to address intelligence-gathering gaps. It lets the government collect information without a warrant on non-US citizens living abroad.

That’s a worthy purpose; although the realization has demonstrated the difficulty of using the capability to good effect, and without abusing it. Or the impossibility of that with the current regime. The FBI has demonstrated that, as an institution, it cannot be trusted with 702 output, and the FISA Court has empirically demonstrated that cannot be trusted, either—not after squawking about FBI lies in the latter’s filings and then proceeding to accept unquestioningly further FBI blandishments and warrant applications.

Answering those deficiencies, though, is a separate matter from applying the appropriate responses to the FBI’s misbehaviors and the FISA Court’s yapping about those misbehaviors.

The FBI is irretrievably broken—its lies to a court are only part of the institution’s failures; its stonewalling of Congress under the risible rationalization that its internal procedure policies are superior to Congress’ constitutionally mandated oversight obligations are another—and it needs to be erased from our government altogether. That, not dealing with 702, is the correct response to the FBI’s institutional dishonesty.

The correct FISA-related action is to make the FISA Court a public proceeding court or itself eliminated as well. That’s not punishing anybody; that’s simply getting rid of the stain of a secretive Star Chamber and forcing “court” activities out into the sunlight, or bringing the warrant application/granting process back into a proper Article III court. Those courts, after all, are fully checked out on the process of keeping warrants sealed until execution.

Occupying Floodwaters

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It seems a Wisconsin man owns some property near Ixonia, and that property has been flooded, gets flooded fairly frequently, by the Rock River against which the man’s property lies. He’s gotten fed up with the airboats that go running across his land, taking advantage of its temporarily flooded condition, and he’s filed suit in Wisconsin’s Jefferson County Circuit Court to put an end to the practice.

At the heart of the issue is the so-called public trust doctrine, which are provisions in the Wisconsin Constitution that guarantee public access to navigable waters generally defined as any waterway with a bank upon which someone can float a canoe or other small watercraft on a regular basis.
State Department of Natural Resources policies state that the doctrine grants access rights to any part of a navigable waterway as long as the person remains in the water.

At the heart of the man’s suit is this:

public access [the suit holds] ends at the ordinary high water mark, a point on the bank or shoreline where the water regularly stops, and that the DNR’s position has left law enforcement confused.
“DNR’s authority to implement and enforce the public trust doctrine is limited to navigable lakes, streams, sloughs, bayous and marsh outlets,” the lawsuit says. “Flooded yards do not fit into these categories and are not subject to DNR’s public trust jurisdiction.”

The man has the right of it, and a key phrase is that “regular basis” bit. There’s nothing regular at all about floods—that’s why they’re called floods and not rivers, or bayous, or swamps, or ponds or lakes. Another key phrase is that waterway with a bank bit. Floods don’t have banks; they’re floods because the water has overflowed the waterway’s banks.

Beyond that, there are basic private property rights. A man owns his private property, whether it’s in its normal state or flooded by a temporary overflow. There are no “navigable waters” in a flood sitting on private property, however easily someone else’s boat might float on the flood.

Wisconsin’s constitution is fairly explicit on the matter of private property. Art I, Sect 13:

Private property for public use. SECTION 13. The property of no person shall be taken for public use without just compensation therefor.

There is no clause or collection of clauses that authorizes the DNR’s navigable water policy. The DNR’s…policy…looks an awful lot like a taking without just compensation. Just a “shut up and deal with it” misinterpretation of the State’s constitution.

The cynicism of the DNR’s position regarding floods and navigability is demonstrated by this definition of navigable waterway in the DNR’s own policy regarding waterway jurisdiction:

A navigable waterway is defined through case law as any waterway that has a defined bed and bank, and upon which it is possible to float a canoe or small watercraft on a recurring basis.

This directly contradicts the DNR’s Public Trust Doctrine definition of navigable waterway on which it’s hanging its hat in defense in the law suit:

The Public Trust Doctrine applies to all navigable waters, which are defined as any waterway on which it is possible to float a canoe or small watercraft at some time during the year.

That internal-to-DNR contradiction by itself ought to be enough for summary judgment in the man’s favor and the striking of DNR’s navigable water policies. With that internal contradiction, DNR has demonstrated that it has no concept of navigable waters.

An Opportunity to Reverse Kelo

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Kelo v City of New London was a 2005 case involving our Constitution’s 5th Amendment Takings Clause: a homeowner who didn’t want to sell her home in New London, CT, to a property developer who said he needed the property to finish out the development of shopping mall. New London agreed on the developer’s representation that his mall would produce more tax revenue for the city than the homeowner’s property tax remittances. In the resulting suit, the Supreme Court decided that government has the authority to commit such a Taking and redistribution for the public purpose of increasing government’s tax revenue.  The Court said that one man’s private purpose is superior to another’s so that other must surrender his property to the one.

What the Takings Clause actually says is

…nor shall private property be taken for public use, without just compensation.

For public use, not for public purpose, and certainly not for a private enterprise’s claimed public purpose.

Now a case is developing that should end in the Supreme Court and present the Court with an opportunity to reverse that shameful ruling.

A public school district in Texas is pursuing an eminent domain process to remove a 78-year-old man from the home that his family has owned for more than a century in order to build a high school football stadium parking lot.

The 78-yr-old homeowner’s daughter, Tara Upchurch:

I want you to understand what the significance of this place is for my father. It is where he played as a child with his grandparents, where he woke up 4 a.m. to milk cows, it’s where he spent 39 years happily married to my mom, and it’s where he raised a family, and it’s a place we never thought he would leave[.]

On the other hand,

Aldine ISD is planning to build a $50 million football field and parking lot on his property and is using eminent domain options after the Upchurch family rejected an initial offer to purchase the property last year, KPRC reported. Eminent domain allows the government to acquire private property for public use.

Aldine ISD wants it, and its desire is more important than a property owner’s…ownership. Well, then. That settles it. That’s what Kelo has wrought.

Private property ownership isn’t actually ownership: if another private entity wants it, all that one needs to do is to persuade a government or quasi-government that its desire is greater than the original owner’s ownership, and the owner must give it up.

This is the mess that Kelo caused, and this is the mess that the Supreme Court should get an opportunity to clean up, and it should clean it up.

Maybe, Instead…

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Montgomery County Public Schools, in Maryland, has decided it’s had enough of parent input regarding its program of “storybooks” with sex workers, kink, drag, gender transitions and same-sex romance for elementary-age children. The MCPS, in its magnanimity, had allowed parents to opt their children out of such things, but the parents, en masse, opted their children out.

MCPS responded by issuing a blanket policy of no exceptions and no notifications—no more opt out for all those uppity recalcitrant parents.

Never mind that

the storybooks…explicitly encourage[e] children to “question sexuality and gender identity, focus on romantic feelings, and embrace gender transitioning[.]
Pre-kindergarten students, for example, are required to read Pride Puppy, which “promotes pride parades as family-friendly events without cautioning about the frequent nudity and sexually explicit conduct….”

Maybe, instead, there should be a blanket removal of the program altogether. It’s time, also, for a blanket removal of the MCPS school board and its Superintendent and staff.

A Good Move

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It needs a parallel move, as well. Sadly, both are pipe dreams in the current government.

Recall that President Joe Biden (D) has pushed, through the Federal Housing Finance Agency, his Loan-Level Price Adjustment rule which penalizes Americans with good credit scores by requiring mortgage lenders to charge them higher interest rates in order to lower the rates charged those mortgage borrowers who have poor credit scores.

Senator Roger Marshall (R, KS) and Senator Mike Braun (R, IN) have introduced the Middle Class Borrower Protection Act that would block Biden’s move.

This is a good initial move, but it wants a separate, parallel move: reduce the funding of the FHFA by the aggregated dollar amount of the loan rate increase that Americans with good credit scores would be forced to pay were the Biden Rule left intact. Leave that reduction in place, and freeze the FHFA’s remaining budget at its current level for a minimum of five years (to remove it from election cycles), with automatic extensions of the freeze until Congress is satisfied that no one in the agency is working on ways to get around the MCBPA’s bar.

Sadly, both are pipe dreams at present: there are too many Progressive-Democrats in the Senate for either legislation to pass.