Category Archives: Courts

The Judicial Branch and the Law

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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

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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.

Trust

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First we have the NSA collecting personal telephone call data. Now we find out about this shadowy program, which was uncovered only because DEA had to give up its existence pursuant to a criminal case involving a man accused of planning the export of technology to Iran:

The Drug Enforcement Administration has formally acknowledged that it maintained a sweeping database of phone calls made from the United States to multiple foreign countries.

And

…the program relied on administrative subpoenas to collect records of calls….

Not even a secret, but at least Article III, judge granting (or, rarely, refusing) warrants to search. Now we have, also, the same sort of warrant issued administratively (but just as sub rosa if not outright secretly).

What other secret databases is the Federal government keeping on its employers, us citizens?

These two programs, shrouded as they’ve been, are illustrations of why government cannot be trusted with such collections absent open, publicly sought and issued or refused 4th Amendment warrants. These two programs demonstrate instead that, without such public requests and issuances/denials, the Constitution will be ignored at convenience.

An aside: DoJ says this DEA collection program has been discontinued. There’s no evidence, though, that the database has been destroyed. DoJ is only willing to claim that the contents have been deleted. We know, of course, from IRS deletions that deleting doesn’t necessarily mean deletion.

Punishment of Terrorists

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There is a strong view that terrorists should be executed for their acts. In the main, I don’t disagree. Capital crimes desperately want capital punishment: prompt execution.

However.

Many of these terrorists are doing their deeds in order to become martyrs and to live in Allah’s heaven. For these, execution is a reward, not a punishment; for such as these, execution is a goal devoutly to be wished, not a deterrent.

Instead, I suggest, expensive as it would be, that wherever possible, those terrorists who are acting for martyrdom should be taken alive and allowed to die of old age in a prison cell. Here is punishment for the terrorist, and here is the possibility of deterrence: the price of failure being to live a long life in a cage, to be denied death except through the senility of old age.

Illinois and Money

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The government of Illinois—a Democratic Party-controlled government at the time—reduced the cost of its public pension programs by passing a law reducing future cost growth, specifically, by reducing the size of future increases in pension payouts, without eliminating those increases.

Illinois’ Constitution has this to say on the matter of public pensions:

Membership in any pension or retirement system of the State, any unit of local government or school district, or any agency or instrumentality thereof, shall be an enforceable contractual relationship, the benefits of which shall not be diminished or impaired.

Illinois State Judge John Belz decided that the enacted law was a violation of Illinois’ constitution and struck the law.

The state of Illinois made a constitutionally protected promise to its employees concerning their pension benefits[.]

And

[I]t is clear that if something qualifies as a benefit of the enforceable contractual relationship resulting from membership in one of the State’s pension or retirement systems, it cannot be diminished or impaired.

Yet what “qualifies as a benefit” is a matter of statutory definition, a matter set by the Illinois’ legislature. Belz’ ruling indicates that these legislative definitions are, in fact, amendments to Illinois’ constitution—else those definitions must be changeable at legislative initiative, as the law Belz has struck did.

Among his objections is this:

The Act adds new language to the Pension Code….

Now the whole Pension Code, enacted by the legislature and not by constitutional convention, is suddenly a part of the State’s constitution.

Belz’ ruling goes on in that vein.

Belz also seems to have misunderstood what the legislature has done in concrete terms. As he clearly understands, the legislature acted to reduce the size of future pension payouts, changing, for instance, the way a (future) pensioner’s 3% annual increase in pension payment is calculated. The pensioner still gets an increase, though. A smaller increase, as any third grade pupil in arithmetic easily understands, still is an increase. A pensioner’s pension in no way is diminished or impaired, by the definition of increase.

Finally, a practical question: a State’s police powers are an assertion that the State can use its governance offices to act to protect public safety and welfare—to prevent a State from being unable to honor its financial commitments and defaulting altogether, for instance. Thus, if Illinois’ government is unable to act to pay its pension obligations, how does Belz propose those obligations be met?

The judge screwed up, and the State is appealing.

 

Belz’ summary judgment order can be read here.