Posting This Because I Thought no one Would See It – Quoting Somin

Posted on November 17, 2019 by markinaustin

Volokh Conspiracy readers may be interested to see videos of two panels I participated in at this year’s recently concluded Federalist Society National Lawyers Convention: “The Wisdom and Legality of Sanctuary Cities” and “Originalism and Constitutional Property Rights.”

In the sanctuary cities panel, I crossed swords with former Attorney General Jeff Sessions, among others, and explained why the Trump administration’s attacks on sanctuary cities violate constitutional limits on federal power, and have—fortunately—led to a long series of defeats in court, at the hands of both liberal and conservative judges. I also described why sanctuary jurisdictions have good policy and moral reasons for refusing to cooperate with some aspects of federal immigration enforcement, including the fact that involving local police in immigration enforcement undercuts ordinary law enforcement. Sanctuary jurisdictions are also justified in rejecting cooperation with federal deportation efforts, given the horrific abuses in its immigration detention facilities, and the government’s history of wrongfully detaining and deporting even US citizens.

At the property rights panel, I discussed and debated the original meaning of constitutional protections for property rights with distinguished takings scholars Tom Merrill (Columbia), Richard Lazarus (Harvard), and my George Mason University colleague Eric Claeys.  I argued that the original meaning of the Takings Clause requires judicial enforcement of tight limits on government power to take property for “public use,” a concept which should be given a narrow construction encompassing only publicly owned projects, while excluding most condemnations that transfer property to private parties. My talk was in large part based on my book The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain.

On the property rights panel, I advocated what might be seen as a right-wing position (defending strong constitutional protection for property rights). On the sanctuary cities panel, I defended what is usually considered a  “left-wing” perspective on sanctuary cities. But, despite the seeming contradiction, I think there is actually an underlying coherence between the two positions: both advocate strong judicial enforcement of constitutional limits on government power, and both protect poor and vulnerable populations against the sometimes overwhelming power of the state.

Of course this year’s Federalist Society Convention will probably be best remembered for Attorney General William Barr’s seriously flawed speech extolling an extraordinarily broad theory of executive power. Among other things, he ignores the many ways in which executive power has grown far beyond the Founders’ design and argues for near-total judicial (and often also congressional) deference to the president on anything involving “foreign relations” and “exigent circumstances.” This is a misreading of the Constitution, and such deference has historically led to grave abuses of power. If time permits, I may have more to say on Barr’s speech later.

Filed under: civil liberties, Constitution, law, legal theory, Libertarians, Open Thread | Tagged: | 3 Comments »

I Think Everyone but Thomas Piled on the Poor Guy

Posted on November 28, 2018 by markinaustin

Click to access 17-1091_1bn2.pdf

 

This is 70+ pages of a good lawyer trying convince the Court to incorporate the federal right to claim a fine is excessive (as applied to a civil forfeiture).  The Indiana trial court and appellate intermediate court thought the fine [forfeiture] was excessive and ruled with the defendant, explicitly having decided under the US Constitution.  Indiana Supremes said that was not clearly laid out in any US Supreme Court case, and reversed.

 

So here we are, with a plausible argument before the Supreme Court and nobody even beginning to buy it.  Not RBG, nor Wise Latina, nor Roberts nor Alito.  Not Breyer, who was pretty funny.

 

Click, download, read, and enjoy.

 

And the entire Court, save for CT who was silent, just jumped all over the guy and made his life miserable.

And then the entire Court jumped all over the attorney general for Indiana.  All of them.  Except CT.

 

It is an entertaining read.

 

 

 

 

 

 

 

 

 

 

 

–

Filed under: civil liberties, Constitution, law, Supreme Court | Tagged: , , | 5 Comments »

What We Are Talking About When We Talk About Trayvon Martin

Posted on July 13, 2013 by yellojkt

cand130709

cand130710

The trial of George Zimmerman, a neighborhood vigilante who shot and killed Trayvon Martin, an unarmed black teenager who was walking back to his home after buying tea and Skittles at a convenience store, has gone to jury and there is no telling what the verdict will be. Most pundits and trial watchers feel the prosecution was less than convincing, particularly in proving that Zimmerman had intent or malice.

It seems that at any particular time we as a culture are following some Trial Of The Century or another. Part of this is the necessary consequence of having justice-themed news shows like Nancy Grace. The unquenchable maw of the newscycle demands fresh meat continuously. But Martin was not the photogenic blond victim that usually make the story line-up.

Kathleen Parker recently took a stab at why this trial in particular fascinates us.

The Zimmerman trial is riveting not because two men got in a scuffle and one of them died or because one was a teenager and the other an armed adult. It is that one was black, the supposed victim of a profiling vigilante, and the other white.

But that isn’t totally why the trial is news. It’s not that white guy shoots black punk, it’s what it took to get the case to be taken seriously. Most of the early outrage triggered by the descent of what some have called racebaiters was over how perfunctorily the initial investigation was. It wasn’t until the media storm started that the Barney Fife-ish Sanford Police Department took the case seriously. They knew who killed Trayvon Martin. They just didn’t think it was worth trying to send Zimmerman to jail over it. Arguably, second degree murder was publicity-driven over-reach, but Zimmerman didn’t even get charged with littering. The unknown hypothetical of whether it would have been treated differently if either party had been a different ethnicity is what set off the tinderbox.

As Juan Williams even-handedly puts it:

Liberal and conservative news TV and radio have played to the racial theme, too. The left, notably Rev. Al Sharpton, have made the case a crusade for racial justice. The right-wing media, especially talk radio, has responded by making Zimmerman a hero.

So what makes Zimmerman a hero to the right wing? That is a very complicated question. In part the trial is just as much about gun rights as it is about racial justice. This is the underdiscussed aspect of the left/right bifurcation on this trial. It comes down to the most loaded word in my typical formulation of the incident, ‘vigilante’. Just how culpable is Zimmerman for initiating the incident? He had a concealed carry permit and was within his rights to get out of his car and follow someone through open space despite the admonition of the emergency dispatcher not to. But there is always the fine line of having rights and the responsible exercise thereof.

Should Zimmerman have gotten out of the car in the first place? What did he mean by saying ‘Fucking punks. These assholes, they always get away’? Was it frustration over ineffective law enforcement in his neighborhood or was there racial animosity over ‘those’ people? Who struck the first blow? And does it matter?

Those biggest question the jury has to wrestle with seems to be: Was Zimmerman acting in self-defense? We will probably never know because Zimmerman has been verifiably less than truthful about that night. And the only other person who knows what happened is dead.

Filed under: civil liberties, guns, law | 53 Comments »

Monday Morning

Posted on June 17, 2013 by lmsinca

Brent said the Morning Report would be spotty this week so I’ll start with an open thread and a few interesting (to me anyway) links.

This probably seems like a mistake in hindsight.

Foreign politicians and officials who took part in two G20 summit meetings in London in 2009 had their computers monitored and their phone calls intercepted on the instructions of their British government hosts, according to documents seen by the Guardian. Some delegates were tricked into using internet cafes which had been set up by British intelligence agencies to read their email traffic.

The revelation comes as Britain prepares to host another summit on Monday – for the G8 nations, all of whom attended the 2009 meetings which were the object of the systematic spying. It is likely to lead to some tension among visiting delegates who will want the prime minister to explain whether they were targets in 2009 and whether the exercise is to be repeated this week.

In addition to the piece above Snowden isn’t helping himself or us if this  is true.

Former NSA employee, and famed PRISM whistleblower, Edward Snowden is now leaking top secret documents that appear to have nothing to do with the NSA eavesdropping on Americans, and everything to do with hurting the United States’ national security position vis-a-vis Russia before a key Obama-Putin summit.

*********************************************************

In light of the above information it should be an interesting G8 talk Obama is scheduled to give defending our phone and internet surveillance systems.  I have to wonder what those folks will be thinking.

President Barack Obama will defend U.S. phone and internet surveillance efforts during G8 talks next week, explaining to other leaders the importance of the tools in fighting terrorism, and safeguards in place to prevent abuse of the data

*********************************************************

It’s nice to see a company that pays it’s employees well actually do well.  I’ve also heard that Costco employees stick around for years and years and they even have a college education program for people who want to advance within the company.

The big box giant’s profit jumped 19 percent to $459 million last quarter, thanks in part to the company’s efforts to offer discounts to lure more members, according to Bloomberg. The company was able to offer those discounts and boost its profits while paying its workers a decent wage, a claim many of Costco’s competitors can’t make.

A typical Costco worker made $45,000 in 2011, according to Fortune. That’s compared to Sam’s Club workers’ average salary of $17,486 per year, according to salary information site Glassdoor.com.

*********************************************************

I don’t know if any of you saw this interview with the young Air Force guy with PTSD caused by being a drone operator.  I remember thinking that the drones seemed like a good idea for modern warfare, and maybe they are.  I think they save American lives but I’m not sure we’ve gotten their use right yet.

Doesn’t it seem as though we’re not adapting very well to all the new technology and we haven’t actually thought everything through sufficiently?

This is a report on the interview from Richard Engel, but there’s also video at the link.

Bryant said that most of the time he was an operator, he and his team and his commanding officers made a concerted effort to avoid civilian casualties.

But he began to wonder who the enemy targets on the ground were, and whether they really posed a threat. He’s still not certain whether the three men in Afghanistan were really Taliban insurgents or just men with guns in a country where many people carry guns. The men were five miles from American forces arguing with each other when the first missile hit them.

“They (didn’t) seem to be in a hurry,” he recalled. “They (were) just doing their thing. … They were probably carrying rifles, but I wasn’t convinced that they were bad guys.“ But as a 21-year-old airman, said Bryant, he didn’t think he had the standing to ask questions.

He also remembers being convinced that he had seen a child scurry onto his screen during one mission just before a missile struck, despite assurances from others that the figure he’d seen was really a dog.

In 2011, as Bryant’s career as a drone operator neared its end, he said his commander presented him with what amounted to a scorecard. It showed that he had participated in missions that contributed to the deaths of 1,626 people.

“I would’ve been happy if they never even showed me the piece of paper,” he said. “I’ve seen American soldiers die, innocent people die, and insurgents die. And it’s not pretty. It’s not something that I want to have — this diploma.”

*********************************************************

And last but not least from the great state of CA, we passed a budget Friday that made our stingy (hahaha) Governor almost as happy as the other Democrats.  As you probably know Republicans have essentially been side lined.  It ‘s the opposite of states like WI and others where Republicans control all levels.  This piece mentions health care quite a bit and emphasizes how much Obama and others are hoping for a successful implementation here.

Drew Altman, president and chief executive of the Kaiser Family Foundation, said the success of the federal healthcare law hinges largely on the outcome in California.

“California is pace-setting, and everyone in health reform is watching very closely,” he said. “It’s hard to imagine its success until it succeeds in California.”

Many of the healthcare changes are riding on this year’s budget and a series of related bills among those lawmakers are expected to take up Saturday.

“California really couldn’t move full speed ahead” until the budget passed, said Chris Perrone, a director at the California HealthCare Foundation. “It clears the path to a lot of work that needs to happen.”

That work includes computer upgrades to process new patients and outreach efforts to ensure that more people enroll in health plans.

Healthcare was one of the final sticking points in budget negotiations this year. Brown insisted on allowing the state to scale back its coverage if federal money is reduced.

Filed under: 2013 and beyond, budget, California, civil liberties, NSA | Tagged: , | 36 Comments »

What Kind of Whistleblower Would You Be?

Posted on June 11, 2013 by lmsinca

I’m not sure what to think about this Snowden guy.  I tend to think the government certainly has an obligation to hold secrets when it comes to national security and yet obviously the American people deserve to know, and I think participate in, the process by which we give up so many of our legal rights in order to acquire that sense of security.

Diane Feinstein thinks he should be tried for treason and John Boehner calls him a traitor.

Political opinion in the US was split with some members of Congress calling for the immediate extradition from Hong Kong of the whistleblower, Edward Snowden. But other senior politicians in both main parties questioned whether US surveillance practices had gone too far.

Dianne Feinstein, chairman of the national intelligence committee, has ordered the NSA to review how it limits the exposure of Americans to government surveillance. But she made clear her disapproval of Snowden. “What he did was an act of treason,” she said.

House Speaker John Boehner defended the NSA programs and their congressional oversight, saying he had been briefed on the programs and that Americans were not “snooped on” unless they communicated with a terrorist in another country.

“He’s a traitor,” Boehner said of Snowden in an interview with ABC News. “The disclosure of this information puts Americans at risk, it shows our adversaries what our capabilities are, and it’s a giant violation of the law.”

Daniel Ellsberg believes Snowden’s leak is the most important example of whistleblowing in history.

In my estimation, there has not been in American history a more important leak than  Edward Snowden’s release of NSA material – and that definitely includes  the Pentagon Papers 40 years ago. Snowden’s whistleblowing gives us the possibility to roll back a key part of what has amounted to an “executive coup” against the US constitution.

For the president then to say that there is judicial oversight is nonsense – as is the alleged oversight function of the intelligence committees in Congress. Not for the first time – as with issues of torture, kidnapping, detention, assassination by drones and death squads –they have shown themselves to be thoroughly co-opted by the agencies they supposedly monitor. They are also black holes for information that the public needs to know.

Ellsberg seems to think this event will give Americans both the incentive and proof  we need to rise up against this “surveillance state”.   Ha, based on the polling I’ve seen this week and comments from both government officials and public forums I’ve been reading, most people don’t really care that much or simply accept it’s the trade off  for being safe.

And it seems to me we have two different kinds of justice being handed out for whistleblowers.  Thanks to Dodd/Frank (don’t get me wrong, I know it’s a crappy bill) the SEC has newly enacted protections for financial whistleblowers and the government has reaped the benefits to the tune of   millions of dollars.

In just its first year, the whistle­blower program already has proven to be a valuable tool in helping us ferret out financial fraud,” then-SEC Chairman Mary L. Schapiro said in November 2012. “When insiders provide us with high-quality road maps of fraudulent wrongdoing, it reduces the length of time we spend investigating and saves the agency substantial resources.”

The SEC’s Investor Protection Fund awarded the Commission’s first Whistleblower Award Program recipient in 2012, but the case and individual haven’t been made public. The Fund represents monetary sanctions received from settlements of SEC cases, including penalties, disgorgement, and interest. The balance at the end of fiscal 2012 was $453 million.

And on the opposite end of the spectrum Obama appears to undermine his own support of protections for whistleblowers, at least in the area of National Security.

The federal appeals court granted another hearing on May 24, and the Obama administration rushed out a memo asking the Director of National Intelligence and the Office of Personnel Management to quickly come up with a litmus test for deciding which federal positions can be classified as being “sensitive,” citing a 2010 OPM proposal that aimed to dramatically expand the number of national security employees.

Whistleblower advocates say the court ruling and the president’s memo spell a major rewiring of the Whistleblower Protection Enhancement Act. “It’s not that OPM and DOJ are arguing that whistleblowers in sensitive positions shouldn’t have access to protections. It’s an unintended consequence that they have not tried to prevent,” says Angela Canterbury, public policy director at the Project on Government Oversight, where I used to work. “The Obama administration is undermining the same protections they [formerly] supported.

There are at least five whistleblowers who’ve come up against the heavy hand of the Obama Administration via the DOJ recently.

The Obama administration has waged a war on government whistleblowers. So here are 5 whistleblowers who have been under attack by a president who once said that official whistleblowers were “often the best source of information about waste, fraud, and abuse in government.

Check out the Thomas Drake case:

4. Thomas Drake

A former executive at the National Security Agency, Thomas Drake exposed details about the agency’s Trailblazer Project. For this, he was charged under the Espionage Act, though the government’s case against him spectacularly failed.

Drake became concerned about the Trailblazer Project’s cost–at $1 billion, it was way more than the NSA should have been paying for a program they could have instituted in-house. He was also concerned it would violate the privacy of Americans. But Trailblazer, which was supposed to analyze intercepted communications, was chosen to be the NSA’s vehicle for surveillance anyway. Drake disclosed details about the NSA’s wastefulness to a Baltimore Sun reporter.

The government initially threw the book at him, but their case collapsed. As Marcy Wheeler explained in The Nation: “The Department of Justice had been pursuing Drake for alleged violations of the Espionage Act that might have sent him to prison for up to 35 years. But the government withdrew the evidence supporting several of the central charges after a judge ruled Drake would not be able to defend himself unless the government revealed details about one of the National Security Agency’s telecommunications collection programs.” Drake was eventually convicted on the misdemeanor charge of exceeding authorized use of a computer.

I’m really curious what all of you think of the whistleblower issue in particular, but of course I’m also wondering if anyone thinks there’s a reverse of the surveillance state possible.  Is surveillance state too strong of a descriptive?  Do you think Obama is really to blame or is it just the result of an overzealous government at all levels since 9/11?

Filed under: 2013 and beyond, civil liberties, Constitution, NSA | Tagged: , | 42 Comments »

Being a Muslim in America

Posted on November 16, 2012 by Michigoose

I thought that this piece by Rany Jazayerli was amazing. I usually balk at web pieces that make me click through five pages to read it (just put it all on one page, dammit, or do what Salon does and give me the option of seeing it on multiple pages or scrolling down one), but his writing is excellent and I think his point resonates.

It was with some reservation that I voted for Obama last Tuesday. I have found his presidency to be a disappointment in many ways. He wasn’t nearly aggressive enough about addressing the financial crisis he inherited, nor did he press for a public airing of what caused the crisis in the first place. His sustained use of drones to fight the war on terror has been both utterly immoral – an inordinate number of innocent victims, including children, have been killed – and completely counterproductive, because the obvious immorality of these attacks has ignited more terrorists than it has killed. Obama’s weak and unfocused response to the horrors being committed every day by the Syrian government is appalling.

But — third parties aside — the alternative was Mitt Romney, and I could not vote for Romney. There was simply no way that I could justify voting for a party that denies the very legitimacy of my identity as an American. And there was no way that I could justify voting for any member of that party that does not, in the strongest possible terms, denounce that view. Nor could most other members of the American Muslim community, who just happen to be clustered in swing states like Ohio, Virginia and Florida.

As it turned out, with the Muslim community voting overwhelmingly against him, Romney lost Ohio, Virginia and Florida by narrow margins, and lost the election. Joe Walsh lost his bid for reelection in Illinois’ 8th district, which frees up his schedule to start looking for the terrorists in Elk Grove and Addison. Also losing his bid for reelection was Florida congressman Allen West, who claims that “Islam is a totalitarian theocratic political ideology, it is not a religion.” Well, that’s one way to get around that pesky 1st amendment.

It doesn’t have to be this way. The Muslim community still shares many core values with Republicans, the same core issues that attracted most Muslims to the Republican Party in the first place. Muslims haven’t changed their views on limited government, or the superiority of the traditional nuclear family, or the importance of encouraging entrepreneurship. A Republican Party that focused on its core principles rather than on demonizing a minority as a way to score cheap political points would find support among the American Muslim community again.

Look, I don’t want to be a party-line voter. It does Muslims no good to be identified with a single political party – we run the risk of being taken advantage of by the Democratic Party, while having our needs completely ignored by the Republicans. And I look forward to the day, hopefully in the near future, when I once again vote for a Republican candidate. If Chris Christie — who unlike Romney has forcefully denounced “the crazies” (his term, not mine) — runs for president, I’ll give him full consideration.

But first, the Republicans have to stop insinuating that I’m alien to this nation. They have to stop implying that I support terrorists. They have to stop accusing me of being anti-American. And they need to denounce anyone in their ranks who does those things. That, I’m afraid, is not negotiable.

Filed under: 2012, civil liberties, conservatism, Islam | Tagged: | 18 Comments »

Tracking Police Misconduct

Posted on May 22, 2012 by novahockey

Cato is out with a new website that reports on police misconduct.

Example:

7 Clarkstown NY cops subject of suit by man claiming they beat him on video during a false arrest at a bar [3] http://lohud.us/HwzzpY

Here’s the FAQs on what the project is about and why they’re doing it. Simply put, they’re doing it because nobody else is.

Of course, it is from Cato.   And apparently that’s created a bit of a blogosphere dust-up, as we all know that inside a libertarian is a Republican dying to get out.    For those interested in that see Radley Balko.

Filed under: civil liberties | 8 Comments »