Currently viewing the tag: “Laws”

After being shot down earlier this week, the Arizona State Senate revived and successfully passed a bill that would create a mechanism for the state to nullify federal laws.

As TPM has reported, Senate Bill 1433 would create a 12-person “Joint Legislative Committee on Nullification of Federal Laws,” which would “recommend, propose and call for a vote by simple majority to nullify in its entirety a specific federal law or regulation that is outside the scope of the powers delegated by the People to the federal government in the United States Constitution.”

The bill passed the Senate 16-11 after three Republicans switched their vote.

Iowa passed a similar bill in its House last month, though that bill specified that the state would not be required to follow the individual mandate in the health care reform law. The Arizona bill gives the committee more broad powers to review “all existing federal statutes, mandates and Executive orders for the purpose of determining their constitutionality.”

But State Senate President Russell Pearce (R) — who introduced the bill, and also sponsored the state’s controversial immigration law — implied that health care reform was at least part of the impetus for the law: “If we don’t take back our sovereign ability for the states to control the federal government, I guess we have no right to complain,” he said, the Arizona Republic reports. “I guess ‘Obamacare’ is OK for you.”

Nullification laws go against the language of the Constitution, which is pretty clear on the subject:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

The Arizona bill will now go to the House for a vote.


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Pakistan’s only Christian cabinet minister, and a staunch opponent of his nation’s blasphemy laws, was gunned down Wednesday as he went to work in Islamabad.

Police reportedly found leaflets from the Pakistan Taliban near the scene of Shahbaz Bhatti’s assassination saying others who shared Bhatti’s view on the blasphemy laws will meet his fate. It’s the second assassination of an opponent of the law in two months. In January, a bodyguard for Punjab Governor Salman Taseer opened fire and killed Taseer.

Malik Mumtaz Hussain Qadri immediately confessed, winning a hero’s status by saying “this is the punishment for a blasphemer.”

The message in Bhatti’s assassination is just as chilling. He served as Pakistan’s minister for religious minorities.

Last month, he told the Voice of America that he was not deterred by death threats. “This extremism is dangerous for the stability of the country,” Bhatti said. “It is the time that the people of different faiths and the Pakistani nation stand united against the forces of intolerance, against the forces of violence. The blasphemy law is being misused to victimize the innocent people of Pakistan.”

In a column published by the BBC, Aamer Ahmed Khan wrote that Taseer’s murder cowed most opponents of the blasphemy law into silence. But Bhatti continued, despite high odds against any success.

“For the extremists though, it is all about ideology. It didn’t matter if Mr Bhatti’s battle had proved to be a non-starter or if he was an ineffective and powerless minister,” Khan wrote. “What mattered was that he had spoken against blasphemy laws in the past and was likely to do so again if a situation arose. That made him a legitimate target, not to be tolerated, not to be ignored.”

Writers see his assassination as further evidence of Pakistan’s descent into chaos, and the hopelessness of those working for reform.

Big Peace

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“This is a concerted campaign to slaughter every liberal, progressive and humanist voice in Pakistan.” Yes. And then they’ll start in on other countries.

“Assassinated Christian Pakistani Gov’t Official Taped Prophetic Death Message,” by Jonathon M. Seidl for the Associated Press, March 2:

ISLAMABAD (AP) — Assailants purportedly sent by al-Qaida and the Taliban killed the only Christian member of Pakistan’s federal Cabinet Wednesday, spraying his car with bullets outside his mother’s driveway. It was the second assassination in two months of a high-profile opponent of blasphemy laws that impose the death penalty for insulting Islam.

The killing of Shahbaz Bhatti, a 42-year-old Roman Catholic, further undermines Pakistan’s shaky image as a moderate Islamic state and could deepen the political turmoil in this nuclear-armed, U.S.-allied state where militants frequently stage suicide attacks.

The Vatican said the assassination shows that the pope’s warnings about the danger to Christians in the region are fully justified.

Bhatti, a campaigner for human rights causes, had apparently been aware of the danger he was in and left a video-taped message with the British Broadcasting Corp. and the Al-Jazeera satellite TV station to be broadcast in the event of his death.

In the farewell statement, Bhatti said he was threatened by the Taliban and al-Qaida, but that this would not deter him from speaking for “oppressed and marginalized persecuted Christians and other minorities” in Pakistan. “I will die to defend their rights,” he said on the tape. “These threats and these warnings cannot change my opinions and principles.”

Despite the threats, Bhatti, who had been assigned bodyguards, was without protection when he visited his mother in the capital of Islamabad on Wednesday afternoon, police said. The politician had just pulled out of the driveway of the house, where he frequently stayed, when three men standing nearby opened fire, said Gulam Rahim, a witness.

Two of the men opened the door of the car and tried to pull Bhatti out, Rahim said, while a third man fired his Kalashnikov rifle repeatedly into the dark-colored Toyota, shattering the windows. The gunmen then sped away in a white Suzuki Mehran car, said Rahim who took shelter behind a tree. Bhatti was dead on arrival at an area hospital, while his driver was not harmed.

In leaflets left at the scene of the shooting, al-Qaida and the Pakistani Taliban Movement in Punjab province claimed responsibility. They blamed the government for putting Bhatti, an “infidel Christian,” in charge of an unspecified committee, apparently referring to one said to be reviewing the blasphemy laws. The government has repeatedly said such a committee does not exist.

“With the blessing of Allah, the mujahedeen will send each of you to hell,” said the note, which did not name any other targets.

Government officials condemned the killing, but made no reference to the blasphemy law controversy.

“This is a concerted campaign to slaughter every liberal, progressive and humanist voice in Pakistan,” said Farahnaz Ispahani, an aide to President Asif Ali Zardari. “The time has come for the federal government and provincial governments to speak out and to take a strong stand against these murderers to save the very essence of Pakistan.”…

But in a sign of how scared the largely secular-leaning ruling party is of Islamist street power, party leaders haven’t supported calls for reforming the laws. Instead, Prime Minister Yousuf Raza Gilani and others have repeatedly insisted they won’t touch the statutes….

Jihad Watch

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Convicted felon and Manhattan Declaration author Chuck Colson says that anti-bullying laws are actually meant to indoctrinate young people into homosexuality. Just like what happens in prison.

Joe. My. God.

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A real leader

We have a president who is capricious about the laws he enforces. Last summer, President Obama’s selection to run Immigration and Customs Enforcement, John Morton, said that his agency won’t necessarily process illegal immigrants turned over to his agency by Arizona officials.

Last week Eric Holder, Obama’s attorney general, says the Justice Department will no longer enforce the Clinton-era Defense of Marriage Act-because a federal judge ruled part of it unconstitutional.

Odd, but didn’t another federal judge rule all of ObamaCare unconstitutional?

A true leader doesn’t pick and choose the laws he enforces. As I wrote last year, while heading the New York City Police, Theodore Roosevelt vigorously executed its unpopular blue laws. Why? Because it was his job.

Courtesy of Edmund Morris’ The Rise of Theodore Roosevelt, here is TR’s statement about his blue law zeal:

I do not deal with public sentiment. I deal with the law. How I might act as a legislator, or what kind of legislation I would advise, has no bearing on my conduct as an executive officer charged with administrating the law.


Moving on to public sentiment, when he was running for president, Obama said he was against gay marriage. Since he hasn’t to my knowledge reversed his stance, that means he still opposes same-sex marriage, but he won’t enforce the Defense of Marriage Act.

Real clear, right?

Are you ready for more confusion? In his first state Senate run, in 1996, Obama declared, “I favor legalizing same-sex marriage, and would fight efforts to prohibit such marriages.”

As for Roosevelt, I believe he was too ardent with his progressive-aggressiveness, but while president, people knew where he stood on an issue.

Currently we have a president in the White House who appears to be not a flip-flopper, but a flip-flop-flipper.

Related post:

Obama administration: Picking and choosing the laws it enforces

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Marathon Pundit

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A former Democratic state attorney general thinks Wisconsin’s Republican governor may have violated state ethics laws while on a prank phone call.

Capital Times (“Ex-AG sees violations by Walker in stunt call“):

“There clearly are potential ethics violations, and there are potential election law violations and there are a lot of what look to me like labor law violations,” said Peg Lautenschlager, a Democrat who served as Wisconsin’s attorney general after serving for many years as a U.S. attorney. “I think that the ethics violations are something the (state) Government Accountability Board should look into because they are considerable. He is on tape talking with someone who he thinks is the funder of an independent political action committee to purchase advertising to benefit Republican legislators who are nervous about taking votes on legislation he sees as critical to his political success.”

Lautenschlager, a former legislator who has known Walker for many years and who has worked with many of the unions involved in the current dispute, says: “One of the things I find most problematic in all of this is the governor’s casual talk about using outside troublemakers to stir up trouble on the streets, and the fact that he only dismissed the idea because it might cause a political problem for him.”

On the tape, Walker is asked about “planting some troublemakers” to incite the crowds at what have been peaceful protests. ”(We) thought about that,” replied the governor, who added: “My only fear would be is if there was a ruckus caused is that that would scare the public into thinking maybe the governor has gotta settle to avoid all these problems.”

“I think there’s a serious issue there,” Lautenschlager explained. “That’s a public safety issue. And I think that is really troublesome: a governor with an obligation to maintain public safety says he’s going to plant people to make trouble. That screams out to me. For a governor even to consider a strategy that could unnecessarily threaten the safety of peaceful demonstrators — which the governor acknowledged he did — is something that simply amazes me.”

I’d certainly have preferred that Walker dismiss the suggestion as outrageous. But he’s clearly trying to schmooze “Koch” by explaining why his suggestion doesn’t even make political — leaving aside legal and moral — sense. There’s no evidence that Walker actually planned to insert “troublemakers” into the protests. My guess is that it had never occurred to him.

Lautenschlager reviewed the tape of the phone call and the transcript at the request of The Capital Times. She noted a pattern of instances where the governor seemed to put his personal political agenda ahead of his duties as the state’s chief executive.

Lautenschlager noted, in particular, the governor’s reference to displaying a photo of former President Ronald Reagan at the dinner where he explained plans for his budget repair bill — which seeks to strip state, county and municipal employees of their collective bargaining rights, restructure state government in a manner that dramatically extends the power of the governor, undermine the BadgerCare and SeniorCare programs, and sell off publicly owned power plants to private firms like Koch Industries.

“He essentially parallels what he’s going to do to organized labor with what Ronald Reagan did to the air traffic controllers,” said Lautenschlager, referencing the former president’s firing of striking controllers in 1981. “By doing that at this time, when the contracts for state employees are still in effect, it looks as if he’s signaling a willingness to commit an unfair labor practice violation by refusing to negotiate.”

Lautenschlager noted a body of labor law that prevents employers from using threats of layoffs as a negotiating tactic with unionized workers.

Some of this — the privatization using no-bid contracts, in particular — is bad public policy. But fantasizing about firing union workers that he can’t actually fire doesn’t amount to an unfair trade practice.

Regarding another part of the conversation, where the caller posing as David Koch promises to bring the governor to California as a reward when and if the budget repair bill passes, the former attorney general noted the tenor of the conversation.

“Scott: Once you crush these bastards I’ll fly you out to Cali and really show you a good time,” says the caller identified as David Koch.  Walker replies: “All right, that would be outstanding.”

“When an elected official in Wisconsin is offered a trip somewhere to have a good time, and he responds by saying ‘that would be outstanding,’ ” said Lautenchlager, “it certainly sounds like something ethics investigators should look into.”

Again, this strikes me as schmoozing rather than some conspiracy to accept a bribe. “Koch” promised him “a good time” out of the blue and Walker said “that would be outstanding.” I can’t imagine this is actionable.

The prank phone call showed the extent to which politicians are beholden to campaign money. It’s unseemly. But there’s no clear alternative, either.

Outside the Beltway

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(Ilya Somin)

The Obama Administration’s decision not to defend the constitutionality of the Defense of Marriage Act has inspired a great deal of criticism from commentators who believe that it is an unwise or illegitimate extension of executive power. The critics include Richard Epstein, Curt Levey, and our own Orin Kerr, among others. John Yoo argues that this is a constitutionally permissible exercise of executive power, but an unwise one that contradicts the Democrats’ position on other executive power issues.

I’m not a fan of either the Obama Administration or some of the legal arguments they have made in support of the claim that DOMA is unconstitutional. But I do think that they made the right call here. If a President genuinely believes that a federal statute is unconstitutional he has a duty not to defend it.

I. The President’s Duty to Defend the Constitution Supersedes His Duty to Uphold Federal Statutes When the Two Conflict.

Let’s start with first principles. The president takes an oath to “preserve, protect, and defend” the Constitution. His duty to uphold the Constitution supersedes his obligation to enforce federal statutes when the two come into conflict. After all, federal statutes are only legitimate in so far as they are constitutional. One of the greatest threats to the Constitution is the enactment and enforcement of unconstitutional laws that exceed the powers of government.

Ever since George Washington, presidents have exercised their own judgment in assessing the constitutionality of federal laws, and have not simply deferred to the courts or to Congress. Each branch of government has an independent responsibility to assess the constitutionality of current and proposed laws. This is not incompatible with the duty of the president or Congress to obey judicial decisions that strike down a statute, since the Constitution gives the courts jurisdiction over all cases arising under it. But if the courts haven’t yet ruled on the issue, nothing prevents the president or Congress from making a considered independent judgment that the statute is nonetheless unconstitutional and acting accordingly.

Thus, if the president genuinely believes that DOMA or any other federal statute is unconstitutional, he has at least a prima facie duty not to defend it in court, and possibly a duty not to take actions to enforce it either, as part of his exercise of prosecutorial discretion (a traditional executive power). Obviously, the president can still choose to defer to Congress or the courts in ambiguous cases where he is not sure whether a statute is constitutional or not. It would have been perfectly legitimate for the Obama Administration to conclude that they are not sure whether DOMA is constitutional, and therefore will defer to the considered judgment of Congress until such time as the Supreme Court definitively decides the issue. But the President apparently has a considered view that the statute really is unconstitutional, and not merely uncertain in its status. If so, his duty to the Constitution requires him take the action that he did.

II. Practical Considerations.

Many of the critics of Obama’s decision cite the danger that allowing presidents to refuse to defend statutes they consider unconstitutional would allow them to negate any laws the administration happens to disagree with, simply by not arguing for them in court. This is a reasonable concern. But I think it is overblown.

The fact that the administration chooses not to defend a federal law doesn’t mean that it won’t have other able defenders. In practice, virtually any significant federal law is likely to be supported by states and/or private parties who have standing to intervene. For example, any of the 45 states that today forbid gay marriage would probably have standing to defend its constitutionality on the grounds that otherwise they might have to extend tax credits and other government benefits to resident couples who have entered into same-sex marriages in other states. If a future Republican administration chooses not to defend the constitutionality of the individual mandate, both state governments who support it and various private parties who benefit from it materially would have standing to intervene. For example, insurance companies support the mandate because it requires people to buy their products and that financial stake in the law is surely sufficient to give them standing.

Indeed, supporters of a challenged law should prefer that its defense be handled by a party that is genuinely committed to it, rather than a hostile Justice Department that is only litigating the case because they believe they can’t get out of it. Ed Whelan, a prominent critic of the Obama Administration’s handling of the DOMA litigation, claims that the “administration has been sabotaging DOMA litigation from the outset” by refusing to make the best possible arguments in the law’s defense. If so, wouldn’t DOMA supporters be better off if the statute’s defense were handled by parties who actually believe in their case and genuinely want to win it?

Past experience supports the conjecture that a president’s unwillingness to defend a federal statute doesn’t necessarily doom it to defeat. This is not the first time that a president refused to defend the constitutionality of a federal law or regulation. In 1989, as Jim Copland points out, the George H.W. Bush administration refused to defend the constitutionality of federal affirmative preferences in the Metro Broadcasting case. In the 1982 Bob Jones case, the Reagan administration refused to defend an IRS policy denying tax exemptions to a university that practiced racial segregation for religious reasons. Significantly, both policies were ultimately upheld by the Supreme Court, as other extremely able lawyers were found to defend them. For example, the Bob Jones case was won by prominent Washington, DC lawyer William Coleman.

In recent years, federal courts have gradually relaxed standing rules, making it easier for a variety of parties — especially state governments — to bring lawsuits or intervene in existing ones. Thus, it is highly unlikely that a president’s refusal to defend a statute in court will mean that it won’t find able defenders elsewhere. If there is still a problem, the proper solution is to further loosen restrictive standing requirements, which should be eliminated anyway for reasons I explained here.

UPDATE: I should add that it might also be legitimate for the president to adopt a general policy of deferring to congressional judgment on issues relating to the constitutionality of federal statutes, if he believes that Congress’ judgment on these matters is likely to be systematically superior to that of the executive branch. But I think any such presumption is at best dubious in an era when Congress generally enacts whatever statutes it wants with little or no serious consideration of constitutional constraints on its power.

UPDATE #2: I have changed around some of the wording in this post for the sake of clarity.

The Volokh Conspiracy

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That, of course, was essentially what President Obama is saying when he has his Justice Department announce that they are no longer going to prosecute any cases covered by ex-President Clinton’s Defense of Marriage Act (DOMA).

Behold the wit and wisdom of Eric Holder, our Attorney General:

The President has..concluded Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in such cases. I fully concur with the President’s determination.

Consequently, the Department will not defend the constitutionality of Section 3 of DOMA as applied to same-sex married couples in the two cases filed in the Second Circuit. We will, however, remain parties to the cases and continue to represent the interests of the United States throughout the litigation.

Barack Hussein Obama: President, Congress and all nine Supreme court Justices rolled into one!

I am not addressing DOMA here. Like almost all of President Bill Clinton’s handful of accomplishments while in office, DOMA was a weak, ineffectual half measure – neither hot nor cold, and almost bound to be spewed out of the mouth of the body politic at some point to paraphrase Scripture.

But it was, nevertheless, settled law. And here we have a sitting President and his Attorney General who have unilaterally decided that they don’t feel like enforcing a Federal law on the books, so they simply won’t.

Even worse than the arrogance and the contempt for powers reserved to the legislative and judicial branches of government is the implied suggestion that everyone else but the President and his Attorney General are stupid. The cases involved that Holder says the Justice Department is going to ‘continue to represent the interests of the United States’ in both challenge DOMA’s constitutionality regarding Section 3, which deals with benefits.

Since Holder and Obama just said they agree with the plaintiffs that DOMA is unconstitutional, exactly what ‘interests’ are there for them to defend?

I seem to recall that both swore an oath to protect and defend the Constitution and to enforce the law of the land. Obviously, partisan politics and their personal feelings about a given law take precedence over that.

(hat tip memeorandum)

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Federal laws designed to protect unions add yet another wrinkle to the Wisconsin standoff.

HuffPo's Sam Stein ("Gov. Walker Informed That Bill Targeting Unions May Cost State $ 46 Million in State Funds"): 

Budget referees and transportation officials in Wisconsin have informed Gov. Scott Walker (R) that if he were to pass his controversial anti-union legislation into law, he could be forfeiting tens of millions of dollars in federal funds for transportation.

Under an obscure provision of federal labor law, states risk losing federal funds should they eliminate "collective bargaining rights" that existed at the time when federal assistance was first granted. The provision, known as "protective arrangements" or "Section 13C arrangements," is meant as a means of cushioning union (and even some non-union) members who, while working on local projects, are affected by federal grants.

It also could potentially hamstring governors like Walker who want dramatic changes to labor laws in their states. Wisconsin received $ 74 million in federal transit funds this fiscal year. Of that, $ 46.6 million would be put at risk should the collective-bargaining bill come to pass — in the process creating an even more difficult fiscal situation than the one that, ostensibly, compelled Walker to push the legislation in the first place.

Clearly, a legacy of decades of Democratic control of Congress. I'm surprised these provisions weren't stricken from the books during the Republican era between 1995 and 2007.

It's simply bizarre that the Federal government would regulate collective bargaining at the state level — particularly in a way that penalizes states that have more generous protections. Typically, federal regulations provide a national baseline. Here, though, Wisconsin would be penalized for moving from one level of protection for its state employees to another level that's still higher than those of many non-penalized states.

Outside the Beltway

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This morning’s poll came from the AFL-CIO, this afternoon’s comes from someone more reputable. I can’t find any crosstabs, so until they’re made public, there are two ways we can play this. One: Take it as a dire warning that the GOP may face a nasty backlash at the polls in the next cycle as […]

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Lawmakers introduce a marriage equality bill in the Maryland Senate, where the measure is expected to pass, while legislators in Montana approve a measure that would prohibit localities from outlawing discrimination against gay people. That’s in today’s State Marriage Watch:

– MARYLAND: Earlier today, Maryland Senators introduced SB 116, ‘Religious Freedom and Civil Marriage Protection Act,’ which would allow gays and lesbians to marry in the state while exempting religious institutions from conducting the same-sex marriage ceremonies. State Senator Robert Garagiola introduced the measure and stressed that religious institutions would not be required to recognize these relationships. Listen to audio from today here.

– HAWAII: Tomorrow, Governor Neil Abercrombie will sign a bill allowing gays and lesbians to enter into legally-recognized civil unions. The Hawaii Senate passed the final version of the measure by a vote of 18-5 on Thursday. “I have always believed that civil unions respect our diversity, protect people’s privacy, and reinforce our core values of equality and aloha,” Abercrombie said in a statement. “For me this bill represents equal rights for all the people of Hawaii.”

– WYOMING: On Friday, the Wyoming senate passed a bill to prevent “any recognition of civil unions or marriages among same-sex couples who were wed or entered a union outside of the state.” The body added an amendment to allow out-of-state couples in civil unions access to Wyoming courts and the measure will now have to go back to the House, where it already passed last month by a vote of 32 to 27.

– WEST VIRGINIA: Yesterday, supporters of a bill pending in the House and the Senate “to add sexual orientation to the state’s nondiscrimination law gathered at the steps of the Senate. Most wore stickers proclaiming they ‘stand with Sam,’ referring to Sam Hall, a gay coal miner who filed a lawsuit against Massey Energy in December for discrimination. Watch video of the rally here. The bill’s fate “probably lies with the House of Delegates, where similar legislation died in 2008 and 2009.”

– NEW MEXICO: The House Consumer & Public Affairs Committee voted down three proposed measures “that would define marriage, for legal purposes as being between a man and a woman.” House Joint Resolution 7 “would have made gay marriage unconstitutional if approved by the Legislature and by voters in the 2012 general election” and HJR8 would “seek to amend the Constitution to prevent New Mexico from recognizing otherwise legal out-of-state marriages between persons of the same sex.” House Bill 162 would have bared the state from recognizing same-sex marriages from out of state.

– MONTANA: The House Judiciary Committee approved a bill Monday that would “prohibit local governments from enacting ordinances or policies seek to protect residents from real or perceived discrimination based on their sexual orientation and gender as the cities of Missoula did through an ordinance and Bozeman did through a policy.” The panel also tabled a separate measure “which would have broadened the Montana Human Rights Act to prohibit discrimination statewide based on gender identity or expression and sexual orientation.”

For a complete overview of the latest developments in the marriage battleground states of Rhode Island, Maryland, New York, California, New Hampshire, Minnesota, Wyoming, Iowa, and New Mexico, click here.

Wonk Room

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Today the U.S. Supreme Court will consider the connection between an international convention to eliminate chemical weapons and a suburban Philadelphia love triangle. Remarkably, the first and apparently only person prosecuted under the United States’ implementation of the 1993 Chemical Weapons Convention is Carol Anne Bond, a Lansdale, Pennsylvania, woman who used chemical irritants to cause a slight burn on the thumb of Bond’s formerly close friend after the friend bore Bond’s husband’s love-child. Today the Supreme Court today hears oral arguments in the case (Bond v. United States).

Neither Bond nor her attorneys dispute that what she did was wrongful and dangerous and that punishing her as a criminal is just. Indeed, she pled guilty to two counts of stealing some of her rival’s mail out of her mailbox, and she is not challenging those charges. Tampering with the U.S. mails has long been recognized as a proper subject for criminalization by the federal government.

But Bond asserts that although her use of the chemicals should have subjected her to a state prosecution for aggravated assault, it should not subject her to criminal punishment under a federal statute designed to punish those who violate the terms of the Chemical Weapons Convention. The international organization that has responsibility for implementing the “Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction” states that the convention’s purpose is “to eliminate an entire category of weapons of mass destruction by prohibiting the[ir] development, production, . . . transfer or use” by signatory nations.

These are highly laudable goals, and anyone actively working to develop or acquire chemical weapons, such as to commit a mass terrorist attack or similar act of war, should be severely punished. On the flip side, the 50 states investigate, prosecute, and punish 95 percent of the violent crimes committed in America each year. The states are fully competent to carry out their criminal-justice responsibilities by meting out appropriate punishment to anyone who commits assault, aggravated assault, murder, or attempted murder using poisons or other chemicals.

Mirroring the language of the Convention, however, federal law defines “chemical weapon” quite broadly to include any “toxic chemical and its precursors” not used for a “peaceful purpose related to industrial, agricultural, research, medical, or pharmaceutical activity or other activity.” Even ordinary household chemicals fall within this definition if federal authorities decide the chemicals are not being acquired or used for an acceptable “peaceful purpose.” Therefore, it is at least debatable whether the Constitution grants the federal government power to treat as a chemical weapons offense, punishable by up to life imprisonment, every non-peaceful act that involves some chemical.

More directly to the point, Bond’s sole argument to the Supreme Court is that she should at least have the opportunity to litigate in federal court whether she was convicted under an unconstitutional statute. Invoking the constitutional doctrine of “standing,” the federal court that heard Bond’s initial appeal held that she could not challenge the chemical weapons statute as exceeding Congress’s enumerated powers or violating the Tenth Amendment (which says that all powers not granted by the Constitution to the federal government are “reserved to the States respectively, or to the people”). The Philadelphia-based Third Circuit Court of Appeals relied on an expansive reading of one sentence from a 1939 Supreme Court decision involving the Tennessee Valley Authority and held that only the States themselves may challenge a law that allegedly violates the Tenth Amendment. According to the Third Circuit, individuals convicted and imprisoned under such an unconstitutional law have no standing to challenge the law in court.

But now that the case is before the Supreme Court, even the United States agrees that the Third Circuit wrongfully denied Bond the opportunity to challenge the constitutionality of the criminal offense in the chemical weapons statute. The Justice Department appropriately “confessed error,” abandoned the arguments that federal prosecutors had made in the lower courts and, in its brief for the Supreme Court, agreed with Bond that the decision of the appeals court should be reversed.

Those who have filed briefs as “friends of the Court” in support of Bond’s right to challenge the constitutionality of the chemical weapons statute in court include several prominent conservative and libertarian organizations, as well as the states of Alabama, Colorado, Florida, South Carolina, Texas, and Utah. Indeed, because the United States confessed error, the only brief to the Supreme Court opposing Bond’s right to appeal the statute’s constitutionality had to come from a “friend of the Court” appointed to defend the government’s “win” in the courts below.

If Bond wins before the Supreme Court, the next stop for her case will probably be back before the Third Circuit, where this time the federal appeals court will have to decide the merits of her claim that the criminal offense in the chemical weapons statute is unconstitutional. Regardless of who wins there, the case seems likely to end up before the Supreme Court once again.

The Foundry: Conservative Policy News.

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A new national poll suggests that moves to restrict the collective bargaining rights of public sector unions are not popular with the public at large:

The public strongly opposes laws taking away the collective bargaining power of public employee unions as a way to ease state financial troubles, according to a new USA TODAY/Gallup Poll.

The poll found that 61% would oppose a law in their state similar to one being considered in Wisconsin, compared with 33% who would favor such a law.

Ohio and several other states that have new Republican governors and legislative majorities are considering laws that would reduce the power of government employee unions to bargain over benefits and work rules.

This stands in contrast to a new Rasmussen poll released yesterday which suggests that voters are supportive of Governor Scott Walker in the Wisconsin dispute:

A sizable number of voters are following new Wisconsin Governor Scott Walker’s showdown with unionized public employees in his state, and nearly half side with the governor.

A new Rasmussen Reports national telephone survey finds that 48% of Likely U.S. Voters agree more with the Republican governor in his dispute with union workers. Thirty-eight percent (38%) agree more with the unionized public employees, while 14% are undecided. (To see survey question wording, click here.)

In an effort to close the state’s sizable budget deficit, Walker is proposing to eliminate collective bargaining for public employees including teachers on everything but wage issues. He is excluding public safety workers such as policemen and firemen from his plan.

Thirty-eight percent (38%) of voters think teachers, firemen and policemen should be allowed to go on strike, but 49% disagree and believe they should not have that right. Thirteen percent (13%) are not sure.

The differences between the two polls can be explained by three factors:

  1. The two polls ask different questions;
  2. Gallup polls “adults” while Rasmussen polls “likely voters”; and,
  3. Rasmussen polls should be considered suspect considering the extent to which they over-sampled Republican voters during the 2010 midterms

So, take both of them for what they’re worth. Personally, I’d like to see some polling from inside Wisconsin to see how this is playing there for Walker and the Republicans. That’s likely to have a bigger say in how this standoff ends up getting resolved than a few national polls.

Outside the Beltway

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In the state of Georgia, the next chapter is playing out in a divisive story which has been going on in many states since the end of prohibition. Lawmakers are looking to roll back some of the blue laws which have remained on the books for generations, specifically the restrictions on selling alcoholic beverages on […]

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Missouri State Sen. Jane Cunningham (R) is pushing a bill which would dramatically claw back state child labor protections. As the bill’s official summary explains:

This act modifies the child labor laws. It eliminates the prohibition on employment of children under age fourteen. Restrictions on the number of hours and restrictions on when a child may work during the day are also removed. It also repeals the requirement that a child ages fourteen or fifteen obtain a work certificate or work permit in order to be employed. Children under sixteen will also be allowed to work in any capacity in a motel, resort or hotel where sleeping accommodations are furnished. It also removes the authority of the director of the Division of Labor Standards to inspect employers who employ children and to require them to keep certain records for children they employ. It also repeals the presumption that the presence of a child in a workplace is evidence of employment.

To be fair, children in Missouri would still enjoy robust protections against exploitation even if Cunningham succeeded in repealing all child labor laws in her state, thanks to the federal Fair Labor Standards Act. But far right lawmakers have declared war on federal child labor laws as well. In a lengthy lecture delivered before his election to the U.S. Senate, Sen. Mike Lee (R-UT) praises a discredited 1918 Supreme Court decision declaring child labor laws unconstitutional. That decision, which Lee holds out a model for his tenther vision of the Constitution, was unanimously overruled by the Supreme Court in 1941.

As recently as the day before President Obama moved into the White House, it was difficult to imagine even the most conservative lawmakers breaking with the 70 year-old consensus surrounding child labor laws. Welcome to the post-Tea Party era, where even the most bizarre and disastrous mistakes from America’s past are part of the right-wing’s agenda.


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