Just … Wow: Dem Senate violates Constitution in passing Food Safety bill

December 1, 2010 · Posted in The Capitol · Comment 

Goddard relays:

Roll Call reports that a food safety bill just passed by the Senate in the lame duck session after languishing there for months may be “headed back to the chamber because Democrats violated a constitutional provision requiring that tax provisions originate in the House.”

I recall this intra-Legislative Branch division of powers from high school.  And where were the Republican voices on this rather simple issue?  Feel-good legislation passed by uneducated legislators.  Don’t they have a parliamentarian there?  Aren’t they paid to know stuff like this?

Man, are we in for a bumpy ride.

Liberty Pundits Blog

Human Right Watch: Chechnya’s enforcement of Islamic dress code violates International Covenant on Civil and Political Rightss

November 21, 2010 · Posted in The Capitol · Comment 

In his Cairo address, Obama spoke in defense of the rights of Muslim women who want to wear the hijab if they so choose. Where is he for those who choose not to wear it but are forced, as is happening in Chechnya right now? Those who are suffering under the steady encroachment of Sharia and all of its violations of human rights might not mind a little “outreach” either. But they just don’t seem to be fashionable enough of a cause, just as women’s rights are always a lower priority when demonstrating “respect” for Islam is also at issue.

“Enforcement of Islamic Dress Code for Women in Chechnya,” from Human Rights Watch, November 19 (thanks to Twostellas):

In the past few years the situation of women’s rights in Chechnya has deteriorated significantly, requiring immediate attention from the Russian government and Russia’s international partners.

Chechen women have essentially become the target of a quasi-official “virtue” campaign. For several years, the Chechen authorities have discriminated against women who refuse to wear headscarves, prohibiting them from working in the public sector. Female students are also required to wear headscarves in schools and universities. Though these measures have not been codified into law, they are strictly enforced and vocally supported by the republic’s leader,

Ramzan Kadyrov, who is directly appointed by the Kremlin. This paper describes violence and threats against women to intimidate them into adhering to Islamic dress co des. The documented incidents took place from June through September 2010 in Grozny, Chechnya’s capital.

Russian law guarantees all women, including those in Chechnya, the freedom to choose how they dress as part of their constitutional right to freedom of conscience, but to date the Kremlin has taken no action to put an end to this unwritten but unlawful policy in Chechnya. In the upcoming round of EU-Russia human rights consultations, the EU should urge the Russian government to take action to guarantee the protection of women’s rights in Chechnya and to ensure that the wearing of a headscarf remains a personal choice and that no one will be punished or experience discrimination as a result of her choice.

International and European Standards

The enforcement of an Islamic dress code on women in Chechnya violates their rights to private life, personal autonomy, freedom of expression and to freedom of religion, thought, and conscience. It is also a form of gender-based discrimination prohibited under international law.

That’s Sharia for you. There may be “no compulsion in religion” (Qur’an 2:256) in theory, but in practice, there is layer upon layer of coercion designed to leave no other choice but to submit to Islamic law. And of course, there is the death penalty for apostasy, per Muhammad’s own orders.

The International Covenant on Civil and Political Rights (ICCPR) guarantees people’s right to freedom of religion, as reflected in article 18.2, which states that “no one shall be subject to coercion which would impair his [or her] freedom to have or to adopt a religion or belief of his [or her] choice.”….

Jihad Watch

Ammunition Ban Violates Second Amendment

November 4, 2010 · Posted in The Capitol · Comment 

(Eugene Volokh)

From Herrington v. United States, decided today by D.C.‘s highest court (the D.C. Court of Appeals):

Appellant Kevin Herrington was convicted in 2006 of unlawful possession of ammunition (UA), in violation of D.C. Code § 7–2506.01 (2001) (now § 7–2506.01(a) (Supp. 2010)). His conviction was based solely on evidence that he possessed handgun ammunition in his home….

What is now subsection (a) of D.C. Code § 7–2506.01 provides as follows:

No person shall possess ammunition in the District of Columbia unless: …

(3) He is the holder of the valid registration certificate for a firearm of the same gauge or caliber as the ammunition he possesses; except, that no such person shall possess restricted pistol bullets; …

[F]rom the Court’s reasoning [in Heller], it logically follows that the right to keep and bear arms extends to the possession of handgun ammunition in the home; for if such possession could be banned (and not simply regulated), that would make it “impossible for citizens to use [their handguns] for the core lawful purpose of self-defense.” By the same token, given the obvious connection between handgun ammunition and the right protected by the Second Amendment, we are hard-pressed to see how a flat ban on the possession of such ammunition in the home could survive heightened scrutiny of any kind. We therefore conclude that the Second Amendment guarantees a right to possess ammunition in the home that is coextensive with the right to possess a usable handgun there. The government has not taken issue with that conclusion….

[T]he UA statute makes it a crime to possess ammunition of any kind anywhere, regardless of its use or purpose; and the prosecution may obtain a conviction under the statute without having to prove that the possessor violated any registration, licensing or regulatory requirement or was otherwise disqualified from exercising his Second Amendment right. A UA conviction therefore may be based solely on proof that the defendant possessed handgun ammunition in his home -– solely, that is, on proof of conduct protected by the Second Amendment. In a prosecution such as this one, where nothing more was proved at trial to show that the defendant was disqualified from exercising his Second Amendment rights — there was no evidence, for example, that he possessed the ammunition for an illegal purpose or that he had failed to comply with applicable registration requirements for a firearm corresponding to the ammunition –- the UA statute is unconstitutional as applied. [Footnote: We express no opinion as to whether the UA statute is constitutional in other applications (e.g., as applied to possession of handgun ammunition outside the home or for an improper purpose, or possession of non-handgun ammunition), or whether it is unconstitutional on its face.]

In light of the constitutionally-protected nature of the conduct addressed by the UA statute, its provision of an affirmative defense if the accused had registered a corresponding firearm only compounds the problem. The Due Process Clause “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” While legislatures do have leeway to reallocate burdens of proof so as to require the accused to prove some facts as affirmative defenses (rather than requiring the prosecution to negate those facts as an element of the offense), “there are obviously constitutional limits beyond which [a legislature] may not go in this regard.” Where the Constitution –- in this case, the Second Amendment –- imposes substantive limits on what conduct may be defined as a crime, a legislature may not circumvent those limits by enacting a statute that presumes criminality from constitutionally-protected conduct and puts the burden of persuasion on the accused to prove facts necessary to establish innocence. That, however, is precisely what the UA statute (as we construed it in [an earlier case] does with respect to the possession of handgun ammunition in the home, by making the defendant’s compliance with the registration condition an affirmative defense.

The limited nature of our holding should be understood. The Second Amendment permits the District to condition the lawful possession of handgun ammunition in the home on the possession of a valid registration certificate for a corresponding handgun (so long as the registration scheme is constitutional)…. [T]he prosecution may assume the burden of charging and proving beyond a reasonable doubt that the defendant lacked the necessary registration in order to satisfy the Second Amendment. By doing so, the prosecution would establish that the defendant indeed was disqualified from exercising his Second Amendment right to possess handgun ammunition in the home. The application of the UA statute to the defendant in such a case would not be unconstitutional.

The Volokh Conspiracy

Claim: Boxer Violates CA Campaign Law by Soliciting Teachers to Recruit Student Volunteers

October 27, 2010 · Posted in The Capitol · Comment 

A couple days ago we acquired a direct mailer allegedly from the Barbara Boxer campaign which encouraged Los Angeles teachers to offer their students extra credit if they volunteer for her campaign.  We have been unable to conclusively verify the letter’s authenticity, so until this point we had not posted it.  Apparently the Howard Jarvis Taxpayer’s Association has, because they’ve released a statement to the Los Angeles Unified School District and the Los Angeles County Board of Education imploring them to inform their teachers that any who recruit volunteers for the Boxer campaign would be illegally using taxpayers’ funds.   Letter first, HJTA statement after the jump:


It’s far from unheard of that a teacher offers his or her students extra credit for visiting a campaign headquarters, but this letter, supposedly from the Boxer campaign, is not encouraging the teachers to give a hands on civics lesson.  This passage is the giveaway: “As you may know, Senator Boxer is facing her toughest race yet.  With only 19 days left until election day, it’s now or never.” No, this letter isn’t suggesting a unique educational opportunity for our youngest Americans, it’s a plea to help the Boxer campaign.

Big Government

North Carolina Department of Revenue’s Demand for Amazon Customer Records Violates the First Amendment

October 26, 2010 · Posted in The Capitol · Comment 

(Eugene Volokh)

So holds Amazon.com v. Lay (W.D. Wash., decided yesterday):

Amazon pursues summary judgment as to its First Amendment claim that the DOR’s request for all information related to Amazon’s sales to North Carolina residents violates the First Amendment. The Court agrees and GRANTS the motion.

The First Amendment protects a buyer from having the expressive content of her purchase of books, music, and audiovisual materials disclosed to the government. Citizens are entitled to receive information and ideas through books, films, and other expressive materials anonymously. In the context of distribution of handbills, the Supreme Court held that anonymity “exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular.” McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 357 (1995); Talley v. California, 362 U.S. 60, 64 (1960) (protecting anonymity in handing out campaign literature). The fear of government tracking and censoring one’s reading, listening, and viewing choices chills the exercise of First Amendment rights. In a concurring opinion, Justice Douglas highlighted the deleterious effect of governmental meddling in the reading habits of its citizens: “Some will fear to read what is unpopular what the powers-that-be dislike. When the light of publicity may reach any student, any teacher, inquiry will be discouraged.” United States v. Rumely, 345 U.S. 41, 57–58 (1953) (Douglas, J., concurring).

Two district courts addressing subpoenas seeking book purchase records have similarly held the First Amendment rights are implicated where the government seeks the disclosure of reading, listening, and viewing habits. In In re Grand Jury Subpoena to Amazon.com Date August 7, 2006, 246 F.R.D. 570 (W.D. Wis. 2007), the court held that the government had to show a compelling need to obtain the personal identities and titles of books certain persons purchased through Amazon from a seller suspected of tax evasion. The government served Amazon a subpoena duces tecum seeking the identities of customers of the criminal defendant and information about their purchases. Id. at 571. Amazon provided the requested information, except the identities of the purchasers, objecting that the revelation of the purchasers’ identities would violate their First Amendment rights. Id. at 572. The court agreed. The court barred the government from contacting anyone who did not consent to talking to the government, noting that the First Amendment was implicated where the government might “peek into the reading habits of specific individuals without their prior knowledge or permission.” Id. at 572. A similar result was reached by a district court handling a subpoena request to obtain the book purchasing records of Monica Lewinsky. In re Grand Jury Subpoena to Kramerbooks & Afterwords, Inc., 26 Med. L. Rptr. 1599, 1600-01 (D.D.C. 1998). The court held that the Independent Counsel investigating President Clinton had to show a compelling interest and sufficient nexus to sustain his request. Id.

Amazon and the Intervenors have established that the First Amendment protects the disclosure of individual’s reading, listening, and viewing habits. For example, the Intervenors make uncontroverted statements that they fear the disclosure of their identities and purchases from Amazon to the DOR and that they will not continue to make such purchases if Amazon reveals the contents of the purchases and their identities. The DOR concedes that the First Amendment protects them from such disclosures. In fact, the DOR has repeatedly stated it does not want detailed information about purchases for fear of implicating the First Amendment. However, DOR has consistently requested this very information by reaffirming its broad requests. At the same time, the DOR has also refused to give up the detailed product information about Amazon’s customers’ purchases. The pending request for “all information as to all sales” by Amazon implicates the First Amendment rights of Amazon’s customers and the Intervenors. While the DOR states that it could not possibly match the names to the purchases, its promise of forbearance is insufficient to moot the First Amendment issue. See United States v. Stevens, 130 S. Ct. 1566, 1591 (2010) (stating that the Court “would not uphold an unconstitutional statute merely because the Government promised to use it responsibly”). The Court finds the disclosure of the identities and detailed information as to the expressive content of Amazons’ customers’ purchases will have a chilling effect that implicates the First Amendment.

Given that the DOR’s request implicates the First Amendment, the DOR must show “a compelling governmental interest warrants the burden, and that less restrictive means to achieve the government’s ends are not available.” United States v. C.E. Hobbs Found., 7 F.3d 169, 173 (9th Cir. 1993) (setting for the standard for a First Amendment challenge to an IRS summons). There must also be a “substantial relation between the information sought and a subject of overriding and compelling state interest.” Gibson v. Fla. Legislative Investigation Comm., 372 U.S. 539, 546 (1963) (in the context of a legislative subpoena). The DOR must “actually need[] the disputed information.” In re Grand Jury Subpoena to Amazon.com, 246 F.R.D. at 572.

The DOR concedes that it has no legitimate need or use for having details as to North Carolina Amazon customers’ literary, music, and film purchases. In spite of this, the DOR refuses to give up the detailed information about Amazon’s customers’ purchases, while at the same time requesting the identities of the customers and, arguably, detailed records of their purchases, including the expressive content. With no compelling need for both sets of information, the DOR’s request runs afoul of the First Amendment. It bears noting, too, that the DOR’s requests for information were made solely in the context of calculating Amazon’s potential tax liability. Amazon has provided all of the data necessary to determine its tax liability, except any potential tax exemptions. The DOR has failed to articulate the compelling need to calculate these possible exemptions, particularly where it has admitted that it can and will assess Amazon at the highest rate and it would permit Amazon to “challenge the assessment and … establish that exemptions or lower tax rates applied to some products.” Even assuming there is a compelling need to calculate Amazon’s tax liability inclusive of exemptions, the DOR’s requests are not the least restrictive means to obtain the information. The request is overbroad. The Court GRANTS the motion for summary judgment.

Thanks to Daniel Cowan for the pointer. For more on the dispute, see this earlier post. For my somewhat skeptical views about some First Amendment defenses to such subpoenas, see PDF pp. 30–37 of this article, though I agree that the justification for this particular sort of subpoena — as opposed to some of the subpoenas I discuss in the article — is extremely weak.

The Volokh Conspiracy

Laws (and no Cheeseburgers) for Thee, Not for Me … Michelle Obama Violates Illinois Campaign Law by Having Political Discussion at a Polling Place

October 15, 2010 · Posted in The Capitol · Comment 

Marie Antoinette, Michelle Obama was at it again … laws are for thee, not for me … let the voters eat cake.

Can these people get anything right? I mean seriously, how can something so simple as voting be made a chore? Is it any wonder why they can’t get the big issue right?

First Lady Michelle Obama was caught breaking Illinois campaign election law by  But, there is always an excuse for these these people. Since when is ignorance a defence? You mean to tell “We the People” that after the MSM and the LEFT have told us that they are just so smart and intelligent that they did not know that you were not supposed to engage in political speak near a polling stating. Are you joking? Who knew that Michelle Obama just fell off the turnip truck?

“You kind of have to drop the standard for the first lady, right?” the official explained late Thursday. “I mean, she’s pretty well liked and probably doesn’t know what she’s doing.”

Does any one really think that the Chicago board of elections is really going to look into this as to whether campaign laws were broken by First Lady Michele Obama? Plueze!


From The Drudge Report:

First lady Michelle Obama appears to have violated Illinois law — when she engaged in political discussion at a polling place!

The drama began after Mrs. Obama stopped off at the Martin Luther King Center on the south side of Chicago to cast an early vote.

After finishing at the machine, Obama went back to the desk and handed in her voting key.

She let voters including electrician Dennis Campbell, 56, take some photos.

“She was telling me how important it was to vote to keep her husband’s agenda going,” Campbell said.

According to a pool reporter from the CHICAGO SUN-TIMES at the scene, the conversation took place INSIDE the voting center, not far from the booths.

Illinois state law — Sec. 17-29 (a)- states: “No judge of election, pollwatcher, or other person shall, at any primary or election, do any electioneering or soliciting of votes or engage in any political discussion within any polling place [or] within 100 feet of any polling place.”

In an unrelated story, the Gateway Pundit tells us that in the same day she also “snarfed” down a cheeseburger.I thought Michele Obama said that we were not allowed to eat fast food? I guess she meant us and not her. The hypocrisy astounds.

 When WH Press Sedcreatry was asked of the event, he did like he always does when the Administration is caught red handed doing something wrong, he just laughed it off. Let’s see if the  Obama WH is laughing on November 3, 2010.

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Scared Monkeys

McDonald’s ObamaCare Deal Violates Rule of Law

October 11, 2010 · Posted in The Capitol · Comment 

“…to the end it may be a government of laws and not of men.”

John Adams, Samuel Adams and James Bowdoin, Constitution of the Commonwealth of Massachusetts, 1780


In a blatantly unconstitutional move, the Feds have let McDonalds off the hook from some of ObamaCare’s requirements. This violation of the Equal Protection clause is just one more reminder, as if we needed it, that D.C. is now completely ignoring the rule of law and deciding issues based on political pressure and pull.

“McDonald’s and 29 other firms have received waivers from a requirement to up the minimum benefit covered by insurance, making it possible for their employees to continue to buy low-cost coverage. But thousands of other workers are not exempted and will not be able to afford the government’s idea of good insurance.

Starting next year, insurers will be required to cover up to $ 750,000 in costs, ratcheting up over the next few years so that coverage must be unlimited by 2014. The administration calls that a consumer protection, but it only protects you if you can afford it.

Firms that hire low-wage workers, such as McDonald’s, can offer “mini-med” plans that provide lower benefits than a typical comprehensive health plan at a correspondingly lower cost. By far the most popular mini-med plan offered by McDonald’s costs $ 24.30 a week and covers doctor visits, hospital stays, and some prescription drugs, up to $ 5,000 each year.

Raising the benefit cap to $ 750,000 would put insurance out of reach for workers who clearly want coverage. They are buying that insurance with their own money, without the government telling them they have to. Fortunately, they can now keep that coverage, at least for next year.

True, that’s always gone on. But it used to be hidden, and when discovered heads rolled. Or, at least newspaper headlines made the perpetrators uncomfortable. Now, it’s done in the open and without apology. Though Sebelius did offer this quasi-defense: “We can’t waive a regulation that doesn’t exist.”

That, after all, is one of the problems. As Michael Cannon describes it at Cato: “The law they passed is a shell of a law,” says Michael Cannon, director of health-policy studies at the libertarian Cato Institute in Washington. “Most of the rules have yet to be written.”

That’s one reason so many businesses are holding off on investments and hiring. They have no idea what’s coming. But McDonald’s needn’t worry. High-profile firms can simply ask to opt out and, because it would embarrass the Administration (especially shortly before the election) for so many low-pay workers to get booted off their health insurance plans, they get a free pass.

Do I think McDonald’s should have to follow that law? Of course not. No firm should. It’s impractical, immoral, and unconstitutional. But letting some firms opt out clearly demonstrates that the rules are not uniform, one of the keystones of the rule of law. And, that simply increases the rampant political corruption in D.C.

Far from being a backdoor deal, this sort of thing is actually built in to the legislation. As Caroline Baum outlines it in a Bloomberg editorial

The explanation of the purpose, background and process for filing a waiver isn’t much better. The gist of it is this:

  • the Secretary of HHS is authorized to determine the minimum coverage limits; [emphasis added]
  • the Secretary of HHS is authorized to waive those limits if compliance with them “would result in a significant decrease in access to benefits or a significant increase in premiums,” according to the memo. [emphasis added]

The state insurance commissioners can give the secretary advice, Antos says, but she doesn’t have to take it.

That pretty much describes the operating premise for the legislation that changes health care as we know it.

Bad enough to pass a bad law, one that we can all push to repeal in toto asap. Far worse to apply it selectively, granting a royal privilege to those with something politically important to trade. It undermines the separation of powers, grants still more power to an already out-of-control Executive Branch, and makes the law nothing more than the thinnest veneer over naked fascism.

Given the nature of this sort of quasi-legislation, things like this are bound to happen. There’s no way to apply it uniformly, since it’s designed to separate individuals into favored and punished classes. And, true to form, those allegedly intended to be the (admittedly, unjustly) punished soon find a way to become the favored. Such is the inevitable outcome of Progressive legislation.

Big Government

Nevada Lawyer Says Health Care Reform Violates His Freedom Of Religion

September 8, 2010 · Posted in The Capitol · Comment 

Joel Hansen — the Nevada conservative using some unique arguments in his suit challenging the new health care law — told TPMMuckraker that his argument that health care reform imposed a form of slavery on the nation might not be his strongest argument, but it was a valid one.

“I think it is involuntary servitude, if they force you to buy a product,” Hansen said. But, he noted, “It’s not the same thing as the African-American slaves were under.”

Hansen said that the arguments he expects to be most successful in the court are his argument that the health care law violates the 1st Amendment freedom of religion because, he says, socialism is a type of religion being imposed by the Obama administration through the health care law.

Hansen added that he believes that his argument that the health care law violates the right to privacy is also a winner.

Six lawyers worked on the lawsuit over a period of three months, Hansen said.

He also said his suit has the support of Nevada Republican Senate candidate Sharron Angle. A spokesman for Angle’s campaign did not return a phone call seeking comment.

“I saw her several times and she’s very much in favor of this,” Hansen said.

Health care - United States - Law - Joel Hansen - Politics


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