Category Archives: Courts

War, Politics, and Power

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Karl von Clausewitz noted that war is an extension of politics.  President Barack Obama, with his reliance on drones and seeming decision utterly to eschew capture (with its attendant intelligence value), is making simple killing an extension of politics.

What is the impact on political power of this evolution?

After Attorney General Eric Holder’s evasive testimony before the Senate Judiciary Committee about drone use, Senator Rand Paul (R, KY) filibustered John Brennan’s confirmation as Director CIA, and this finally convinced Obama to have Holder write a letter to Paul, which says in its entirety:

It has come to my attention that you have now asked an additional question: ‘Does the President have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?’  The answer to that question is no.

But what does it mean to be “engaged in combat?” It means whatever the President needs it to mean.

As Richard Fernandez noted in an aptly titled post [emphasis added],

Lawyers have rarely been able to contain power.  As practical matter power is constrained only by politics, which as Clausewitz once observed can be another name for another thing….

He went on:

Power is limited by the degree to which an executive authority can enforce obedience.  It is constrained by the extent to which authority can expect an order to be followed.  It is bounded by the fear of political repercussions; by the dread of losing office and ultimately, by the apprehension that having lost office a person might face jail.

Obama has assured us through his pressman, Jay Carney, that neither he nor his Justice Department would never abuse such power.  And Obama is an honorable man; So are they all, all honorable men.

But with an expansive and expanding government, and Obama’s apparent extension of the tools of politics, our hold on government is growing tenuous.  We cannot allow this to continue.  As a man once said, elections have consequences.  We’re seeing some of those consequences.  It’s time to have different election outcomes.

A Cascade

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…that needs to be encouraged.

Since the DC Circuit’s ruling that the Obama “recess” appointments to the NLRB were unconstitutional—the Senate actually being in session at the time—some 87 enterprises, including a few unions, are citing the ruling in their lawsuits to overturn a variety of the NLRB’s actions.  After all, with the board lacking a quorum, it was legally powerless to do anything at all.

The actions these enterprises are seeking include overturning/blocking union elections, undoing penalty payments to fired workers, halting subpoenas, and so on.

Here’s the cascade: 10 or more NLRB regional directors are argued also to be illegally appointed since they were seated by Obama’s unconstitutionally manned NLRB.  Extending from this, those regional boards’ decisions also must be voided, since those rulings were issued by illegally constituted regional boards.

Lafe Solomon, NLRB acting General Counsel, objects.

It’s already having a huge impact.  At every stage…we’re seeing attacks….

Indeed, as the WSJ reports,

The surge of challenges tied to the court ruling is overwhelming the NLRB, a federal agency that referees disputes between companies and employees.  Working through them is delaying resolution of cases alleging unfair labor practices, including whether workers can fairly hold union elections[.]

There’s no doubt the new workload is inconvenient to the Federal government.  That’s just too bad.  The inconvenience of our employee, the government, can never be an excuse for its behaving illegally.  Our employee, through the NLRB, brought the present inconvenience on itself through its patently illegal behavior.

The NLRB—Solomon—is merely blaming the employer for the employee’s own inconvenience.

You Dumb ….

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That’s what New York State Supreme Court Judge Milton Tilling said to New York City’s lame duck mayor, Michael Bloomberg, on the latter’s…ill-advised…”sugary drink” ban.

Tilling opened his opinion by noting, correctly, the irrelevance of Bloomberg’s “obesity epidemic” motive for the ban—the question before him was simply the legitimacy, the legality, of the ban itself.  Motives, say I in expansion of Tilling’s point, are appropriate considerations only in determining sanctions, given a finding of illegality; they never can be justification for the illegality.

[The city does not have authority to] limit or ban a legal item under the guise of ‘controlling chronic disease,’ as the [city’s health department] attempts to do.  One of the fundamental tenets of democratic governance here in New York, as well as throughout the nation, is the separation of powers.  No one person, agency, department or branch is above or beyond this.

[The City Charter does not grant the health department] sweeping and unbridled authority to define, create, authorize, mandate and enforce [health codes governing food establishments and food preparation.  The soda ban] would not only violate the separation of powers doctrine, it would eviscerate it.

The judge’s beef here is that the health department just up and did the ban.  The ban was never approved by the city council.  The city’s elected representatives are the only ones who can create city law.  In fact these representatives had already explicitly rejected similar ban efforts.

Further, the Bloomberg Ban was unconstitutionally vague, capricious, and stupid.  (OK, I added that last part.  There is no Felony Stupid bar in New York’s or our Federal Constitution.)

The plaintiffs in this case pointed out that

…the Rule exempts soy based milk substitutes, but other milk substitutes such as almond, hemp and rice milk are not exempt.  The Rule also does not preclude unlimited free refills or multiple purchases of 16-oz. beverages or providing unlimited sugars after purchase at the regulated businesses….

And so on.  Tilling agreed.

The court finds that the regulation herein is laden with exceptions based on economic and political concerns. … The statement of financial costs related to the chronic epidemic [by the defendants] further evidences a balancing being struck between safeguarding the public’s health and economic considerations.  This is impermissible….

Further (the motive rejection above notwithstanding),

…the stated premise of…the Rule is to address the rising obesity rate in New York City. … The Rule is nevertheless fraught with arbitrary and capricious consequences.  The simple reading of the Rule leads to…uneven enforcement even within a particular City block, much less the City as a whole.  Furthermore…the loopholes in this Rule effectively defeat the stated purpose of the Rule.  It is arbitrary and capricious because it applies to some but not all food establishments in the City, it excludes other beverages that have significantly higher concentrations of sugar sweeteners and/or calories on suspect grounds, and the loopholes inherent in the Rule, including but not limited to no limitations on re-fills, defeat and/or serve to gut the purpose of the Rule.

 

Tilling’s ruling can be read here or here.

Good Idea, Bad Law

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It’s useful for a jurisdiction to control property use through zoning laws—whether to keep unsavory but legal businesses away from children, to preserve an historical building/neighborhood, and so on—provided those restrictions don’t get too onerous or too intrusive on the property rights of the owner(s).

Sometimes, though, a well-intended law has unintended consequences.

In a precedential decision, Motley v. Borough of Seaside Park, No. A-3214-11, the Appellate Division [of New Jersey] found a house that had been gutted to a shell to accomplish repairs was totally destroyed and so lost its status as a grandfathered nonconforming use under local zoning laws.  The panel strictly construed a statute that says a nonconforming use or structure may be restored or repaired if partially destroyed but total destruction terminates it.

Contaminating this seeming miscarriage of justice, though [emphasis added],

In August 2009, [property owner Daniel] Motley requested and obtained a permit to repair and renovate the house and replace the air-conditioning unit.  The permit carried a notation that siding, shingles and windows could be added, but no bumpouts were allowed and the structure could not be expanded.

Once work began, however, the building, not lived in for some time, was found to be in worse shape than expected and uninhabitable.  Among other problems, the roof and water system leaked, part of the first floor ceiling had collapsed, floor beams were rotted and the main center beam was sagging.

This has implications for homeowners attempting to repair/rebuild their homes and businesses in the aftermath of Hurricane Sandy: the storm’s destruction of buildings will cancel any variances granted, even though these buildings will have been continuously occupied and the spirit of the variances honored throughout.

New Jersey’s Appellate Division ruling on essentially destroyed property thus seems counterproductive; however, the court made the correct ruling: being unable to strike the law as unconstitutional, it applied the law as written.  The failure is in the law itself, not in the ruling.

Now it’s on the New Jersey legislature to correct this evident injustice.

The Racism of the Supreme Court

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During oral arguments concerning Shelby County v. Holder, a case that asks whether the several states and lesser jurisdictions must, in accordance with Section 5 of the Voting Rights Act of 1965, continue to submit their voting plans to Federal supervision and prior permission, came these shocking remarks:

Justice [Elena] Kagan: “Under any formula that Congress could devise, it would capture Alabama.”

Never mind that under any other formula that Congress could devise, it would not notice Alabama at all.  Formulae of this sort find what their developer want found—it’s the purpose of the formulae.  Kagan knows this.

Justice [Sonya] Sotomayor: “It’s a real record as to what Alabama has done to earn its place on the list.”

True enough.  It’s also a real record as to what Alabama has done to earn it way off the list.  Sotomayor knows this.

Justice [Stephen] Breyer: “Imagine a state has a plant disease, and in 1965 you can recognize the presence of that disease. … Now it’s evolved. … But we know one thing: The disease is still there in the state.”

Once a racist, always a racist.  Because we know.

These liberal…Justices…need to look in a mirror.