Category Archives: rights

The Need for a Republican President

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The need is starkly illustrated by a couple of developments involving cases, the Supreme Court, and Justice Antonin Scalia’s death.

One development is this:

Dow Chemical Co had agreed to pay $835 million to settle a class-action case rather than risk an appeal without the conservative justice.

The other is this:

The state Rifle and Pistol Association decided against filing a petition asking the Supreme Court to hear the case fearing the conservative Scalia’s death will make winning the case virtually impossible.

[Rifle and Pistol Association President and National Rifle Association board member, Tom] King said his lawyers advised that going forward could damage the case because the High Court at the very least would likely deliver a split 4-4 decision that would leave the law in place.

This puts a very high premium on electing a Republican president, so we have a good chance of nominating and confirming a conservative judge to the Supreme Court.

Upsetting Someone

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I seem to be, anyway. Some of you may have noticed that I take a dim view of the People’s Republic of China’s aggression and acquisitiveness in the East and South China Seas.

So, apparently, do the folks of the PRC government take a dim view of my dim view. For the last several days, this blog has been getting hit by spam comments from a series of IP addresses owned by Chinanet, which is headquartered in Jiangsu Province in the PRC.

Hmm….

The Fox Investigating the Hen House Leak, Revisited

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I mentioned Fox Business News‘ reporting on the FAA’s carefully biased “outreach” plan for increasing “diversity” in its air traffic controller employee base nearly a year ago, and I concluded that brief mention with the seemingly cynical remark, “Stand by for another whitewash.”

Now, it seems the whitewash is well in hand. DoT conducted its investigation, and there’s no word on its outcome. The FAA conducted its investigation; it

concluded an internal investigation which cleared the NBCFAE and Snow of doing anything wrong. In a statement sent to members of Congress last month the FAA claimed its Office of Security and Hazardous Materials Safety (ASH) had conducted an investigation into the allegations of cheating and favoritism. The FAA claims it was a thorough investigation which reviewed relevant audio recordings and documents. The statement says, “ASH found no specific information or evidence supporting claims that Human Resources employees improperly provided an advantage to ATCS applicants affiliated with the NBCFAE….”

The NBCFAE, recall, is the National Black Coalition of Federal Aviation Employees, one of whose members, Moranda Reilly (among others),

received emails in December 2013 and a recorded message from NBCFAE officer and air traffic controller Shelton Snow.   Reilly says the emails included buzzwords that, “…would help identify us. Key words the system would pick up. It was a kind of a way for our resumes to be picked and chosen. We were told not to share this information with anybody outside NBCFAE.”

Now, in an attempted final response to a FOIA request for those and related emails pursuant to a related law suit, the FAA has filed a motion with the Federal court presiding claiming it is

unable to recover missing and “corrupted” emails….

The FAA reached its conclusion of no wrong-doing, no carefully constructed bias in its air traffic controller applicant selection, by the FAA knowing these critical data weren’t being used in its investigation.

The “missing and unrecoverable” status of that evidence seems awfully convenient.

Orenstein’s Ruling

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…on the Apple case in New York. The Wall Street Journal‘s Law Blog has some notes on Orenstein’s ruling.

In a discussion of why the 1994 Communications Assistance for Law Enforcement Act (which in the context of this discussion authorized things like pen registers in telecommunications companies’ landline telephone switching centers to be attached to specific telephone circuits in response to a search warrant) wasn’t applicable to the New York case, Orenstein wrote

The absence from that comprehensive scheme of any requirement that Apple provide the assistance sought here implies a legislative decision to prohibit the imposition of such a duty. Thus, even under the government’s reading of the [All Writs Act], I would conclude that while the matter is a close call, the Application seeks an order that is not “agreeable to the usages and principles of law.”

And (here as summarized by the Law Blog) in answering a hypothetical in which the President proposed a bill requiring [Apple] to submit to the government in similar cases and the Congress unanimously rejected it:

Under the government’s reading of the All Writs Act, he says, the Justice Department could still seek an order compelling Apple’s assistance “because Congress had merely rejected the bill—however emphatically, and however clear its reasons for doing so—rather than affirmatively passing legislation to prohibit the executive branch’s proposal.” He describes that reading of the All Writs Act as “absurd.”

“Absurd” understates the case. Here’s what the Constitution says about what the government is permitted [sic] to do:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

And

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

If it’s not a specifically named capacity of the government to do, it is expressly forbidden the government. Full stop.

Misusing the Judicial System

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Here’s another cynical decision to bypass the legislative branch of our republican government design, this time by DoJ. Given the behavior of the Obama administration, though, this attitude is unsurprising.

A Federal judge in a New York drug case has ruled that Apple cannot be forced by the government to help crack a cell phone held by prosecutors and claimed by those prosecutors to have critical, if encrypted, information.

The judge wrote, in part,

How best to balance those interests [between privacy and security] is a matter of critical importance to our society, and the need for an answer becomes more pressing daily, as the tide of technological advance flows ever farther past the boundaries of what seemed possible even a few decades ago. But that debate must happen today, and it must take place among legislators who are equipped to consider the technological and cultural realities of a world their predecessors could not begin to conceive.

Indeed. That balance, where to draw the line, and how is a political decision, to be determined solely by us citizens through our elected representatives in Congress. Political decisions cannot be reached by judges; their role is strictly limited by our Constitution to determining the constitutionality of a law and if constitutional to applying it as written. Judges can not, may not, adjust a law to suit the government’s wishes.

Nevertheless, Justice will stay within the judicial system. A carefully unnamed (at least by the AP, whose article is at the link above) insisted on this:

We are disappointed in the Magistrate’s ruling and plan to ask the District Judge to review the matter in the coming days…. This phone may contain evidence that will assist us in an active criminal investigation and we will continue to use the judicial system in our attempt to obtain it.

We will continue to use the judicial system…. DoJ will continue deliberately to bypass Congress. DoJ will continue to seek to impose its own political will on us.