Category Archives: Courts

Change We Can Hope For

Posted on by
Reply

A post-World War II-era program that forces raisin producers to give part of their annual crop to the government could soon be a relic of history.

Several Supreme Court justices expressed doubts Wednesday that federal officials can legally take raisins away from farmers without full payment even if the goal is to help boost overall market prices.

An immediately post-war New Deal law allows the Federal government to manipulate the market’s raisin supply by seizing a significant fraction of a raisin farmer’s crop and thereby prop up raisin prices—for the benefit of that farmer, you see.

Raisin farmers, over the specific period at issue (because law suits, quite properly, have to be specific in their allegations), were required to give up 47% (!) of their crop to the Feds. Marvin and Laura Horne were among the farmers so afflicted, and they demurred, refusing to give up their property, their raisins. For their effrontery, the Feds have fined them almost $700,000.

The law in question, though, is a follow-on from the Supreme Court’s earlier Wickard v Filburn case that gutted the Commerce Clause by allowing the Federal government to dictate to farmers how much wheat they could grow—and therewith to manipulate market prices. Wickard made possible all of the subsequent market interferences and farm diktats that the government has inflicted on the nation.

This case, Horne v Department of Agriculture, is an opportunity for the Supremes to begin correcting that original mistake.

A Stay on Illegal Immigration

Posted on by
Reply

Federal Judge Andrew Hanen has refused to stay his temporary injunction blocking President Barack Obama’s refusal to deport some 4 million illegal immigrants in Federal custody or whose whereabouts otherwise is known to the Feds. Hanen’s injunction will remain in force while Obama’s men appeal the stay to the 5th Circuit.

Refusing to stay his injunction has the effect, among others, of blocking Obama from pursuing (pending that appeal’s outcome) his Deferred Action for Parents of Americans and Lawful Permanent Residents program and his planned expansion of the 2012 program called Deferred Action for Childhood Arrivals.

OF course, enforcing that block is problematic. Aside from the obvious reasons for suspicion, there’s this about that 2012 program from Hanen’s order and ruling:

The Court finds that the Government’s multiple statements on this subject were indeed misleading, as detailed in the Order filed simultaneously with this Order. It also finds that the remedial measure taken by counsel for the Government through the filing of an “advisory” on March 3, 2015, was neither prompt nor fully candid.

Since this administration, once again, has shown it cannot be trusted, there’s no reason to suppose Obama won’t move ahead apace with both programs.

Hanen wasn’t done, though. In a separate order, on the matter of that 2012 program and the President’s men lying about it, Hanen

also issued a separate ruling Tuesday night allowing the states to conduct discovery into their separate claim that the administration, beginning late last year, improperly implemented part of its immigration program, even though it had allegedly represented to Judge Hanen that it wouldn’t do so until February.

Justice Kennedy Testified

Posted on by
Reply

Justice Anthony Kennedy testified a little bit ago before the House Appropriations Subcommittee on Financial Services and General Government regarding the Supreme Court’s budget request. In the course of that, Congressman Ander Crenshaw (R, FL), the subcommittee’s chairman, asked Kennedy about Congressional gridlock. Kennedy answered,

And we think an efficient, responsive legislation and executive branch in the political system will alleviate some of that pressure. We routinely decide cases involving federal statutes and we say, well, if this is wrong the Congress will fix it.

But then we hear that Congress can’t pass a bill one way or the other. That there is gridlock.

Some people say that should affect the way we interpret the statutes. That seems to me a wrong proposition. We have to assume that we have three fully functioning branches of the government, government that are committed to proceed in good faith and with good will toward one another to resolve the problems of this republic.

I think, though, that Kennedy is missing part of the point (keeping in mind that the C-SPAN clip is an excerpt, but this particular answer is presented in its entirety). Federal statutes, under our Constitution, are political matters to be determined solely by We the People through our elected representatives in the Congress (with veto or signing input from our elected President). The Judiciary, that third fully functioning branch of the government under our Constitution, can only decide the legitimacy—the Constitutionality—of a Federal statute and, on finding it legitimate, can only apply that statute as it is written.

There is nothing in our Constitution that authorizes the Judiciary to do any part of law making in the event of gridlock. Gridlock is a political matter, not a judicial one, it’s an occasional outcome of the checks and balances built into our government by our Constitution, and it’s there on purpose: that would be the “check” part. The courts are in no way authorized to fill that void with their own view of what the law (or a law) ought to be. There is, in fact, no void to be filled.

It would have been good had Kennedy given a more complete answer.

The Judicial Branch and the Law

Posted on by
Reply

In a couple of weeks, the Supreme Court will hear a case involving Federal subsidies to health coverage purchasers who bought their plans on ObamaMart instead of State exchanges. The Obamacare law limits those subsidies to purchasers via State exchanges argue the plaintiffs; the government demurs.

Some ACA critics fear the Supreme Court may hesitate to block the current subsidies because of a lack of confidence in the legislative branch in general.

Against that backdrop, Supreme Court Justice Ruth Bader Ginsburg has said

The current Congress is not equipped really to do anything[.]

That claim is the pseudo-logic President Barack Obama uses to justify his Executive Orders and “executive actions” that deliberately bypass Congress, and unconstitutionally so.

Justice Ginsburg, and others of like mind on the Supreme Court, may be entirely right on Congress’ ability—or willingness—to act. However, she, and they, would do well to remember that the Constitution they’re sworn to uphold does not authorize the Court to legislate in place of, or in addition to, Congress.

Justice Ginsburg and her fellows would do well to remember that the judiciary’s task is first to determine whether a law comports with the Constitution as the Constitution is written, and if it’s legitimate, to apply that law as that law is written.

Full stop.

The DoJ Strikes Again

Posted on by
Reply

This case involves a Bureau of Alcohol, Tobacco, Firearms and Explosives ex-agent who sued the BATF over its slander of him and its lack of adequate protection of him and his family after he’d done undercover work for the BATF in the Hell’s Angels motorcycle gang.

United States Court of Federal Claims Judge Francis M. Allegra opened his latest ruling in blunt terms:

On October 29, 2014, the court…issued an order voiding the prior judgment based upon indications that defendant [the United States; the BATF agent was the plaintiff], through its counsel, had committed fraud on the court.

Fraud on the court is an extremely serious bit of…miscreancy. As Allegra explained it,

Fraud on the court “is directed to the judicial machinery itself and is not fraud between the parties or fraudulent documents, false statements or perjury.”

It’s a direct attack on the ability of our judicial system to function at all; it’s not one litigant lying to the other in order to gain an advantage in a particular case.

The underlying case is an indication of the integrity of Attorney General Eric Holder’s DoJ, but I want to focus on the fraud on the court allegation. Allegra focused on two examples he found indicative of a pattern of fraud on the court perpetrated by Holder’s representatives in the case. The first is this:

Testimony at trial indicated that Valerie Bacon, an attorney in ATF’s Office of General Counsel, attempted to convince SAC Atteberry not to reopen the arson investigation [regarding the destruction of the BATF agent’s home, the blame for which was central to the agent’s slander beef]. In this regard, SAC Atteberry testified:

Q. . . . Did you get any kind of discouragement in any respect from anyone at ATF with respect to reopening this arson investigation?

A. Yes.

Q. Please explain.
…
A. I had a phone conversation, and I also believe I talked to her [Bacon] in person one time when she was in Phoenix, and I believe during the telephone conversation she made a comment to me that if you, meaning myself, reopen the investigation that would damage our civil case.

The existence of this illegal conversation was never passed to the court until Atteberry’s testimony. Indeed,

Defendant’s filings regarding this situation demonstrated not only that its counsel—including supervisors in the Civil Division, who received email communications on this topic from plaintiff’s counsel in March of 2013—were aware of Ms Bacon’s actions prior to the trial in this case, but did nothing to apprise the court of her actions or of the potential that the integrity of these proceedings were at risk.

And this instance:

…a taped conversation (a copy of which is part of the appellate record in this case), revealed that defendant’s [the United States, recall] attorneys may have committed other violations of the duty of candor, including a potential failure to advise the court that an ATF agent who testified in this case may have been threatened by another witness during the trial. The taped communication states that defendant’s counsel ordered the agent in question not to communicate the threat to the court and stated that there would be repercussions if the agent did not follow counsel’s instructions. This matter has since been referred to the Office of Professional Responsibility (OPR) at the Justice Department.

Notice that. However,

legal filings show that the agency soon suspended its investigation, saying it would wait to hear what Judge Allegra finds.

This is Eric Holder’s OPR, recall. It suspended the investigation which the judge had explicitly requested be carried out, not a file folder created and then…HIAed.

Unfortunately, the judge has no recourse other than the one he took: to address the matter to…Eric Holder. He did, though, bar the seven defense attorneys from appearing further in his court in connection with this case.

Fox News also asked Attorney General Eric Holder if the lawyers involved had been disciplined. The Department of Justice declined to comment.

Of course not.

The judge’s ruling can be seen here.