[week hiatus]

Book Quickies

The Voice of Harriet Taylor Mill takes an interesting approach to deal with this 19th Century feminist -- the first part is a faux diary to provide a sort of autobiography. Decent idea but seems to go too long. The rest covers various categories of her life and a chapter on her joint efforts with John Stuart Mill, including On Liberty. Meanwhile, an old copy of The Element of Style had some charm and The Prince was pretty readable ... for a skim.

Two Point Try Bites Packs

Down 16, the Packs scored in the 4Q and failed the two point try. They went for one next time and got a FG. Unlikely they would get two twice. That extra point hurt.

Week 12: Insults and Upsets

Bucs/Jaguars won. Rams over Bears. Chiefs lose. Cards win, making some noise. Packs tie -- FG doesn't do it in OT and Viks hold serve ... eventually. Jets fail to beat mediocre team again but still in field of mediocrity for last slot. NYG come back only to give fans a shot at solar plexus at end. Denver has it's own screw fans moment. Ah football.

Kristin's Christmas Past

This Lifetime Xmas film about a woman who goes back to try to change a teenage regret was overall well done though the ending was a bit off.  Nice touch about dial-up / AOL though it was mixed in with a bit of sitcom silliness. Well acted as a whole, Debby Ryan turns out to have but a cameo. Elizabeth Mitchell does a nice job as the mom.

The "Lennie Rule"

A NYT article discusses an upcoming Supreme Court case that might clarify to some degree the guidelines to determine the degree of mental retardation necessary for it to be a bar to the death penalty. The Supreme Court gave the states broad discretion here and I have my doubts the case will do that much to change things.  The article references Texas:

Both prosecutors and defense lawyers in Texas are looking to the high court for clarity when it comes to evaluating intellectual disability.  Texas lawmakers have been unable to pass a law creating a standard, so the existing criteria come from a 2004 decision from the state’s Court of Criminal Appeals in the case of Jose Garcia Briseño. The appeals court invoked, in part, an evaluation of Lennie from John Steinbeck’s 1937 novel “Of Mice and Men,” writing that "most Texas citizens would agree that Steinbeck’s Lennie should, by virtue of his lack of reasoning ability and adaptive skills, be exempt from execution.  But does a consensus of Texas citizens agree that all persons who might legitimately qualify for assistance under the social services definition of mental retardation be exempt from an otherwise constitutional penalty?"

This upset Steinbeck's son:

Steinbeck’s son Thomas described the court’s reliance on the fictional character as “insulting, outrageous, ridiculous and profoundly tragic.”

Jane Austen had a character in Northanger Abbey speak of the value of novels, in part since they provide the "most thorough knowledge of human nature."  I do not think Thomas Steinbeck, therefore, should be insulted. The reference was used as an example of what a "consensus" test of the term would entail in practice. The opinion merely cites Lennie once in its extended discussion of the appropriate test. The whole thing is likely not to be an exact science and a reference to character could be useful to provide a type of archetype, a representative inmate.

Legal opinions use fictional references, including of Shakespeare or the Bible, to make their points. So, putting aside "in part" being a tad vague, the response by Steinbeck's son is misguided. He should be appreciative that his father was seen as so intuitive of the human character.  The other labels used are similarly misguided -- it is not "outrageous" etc. either. Who knows the full context of such things -- quotes in articles are so opaque at times -- but what is "profoundly tragic" about using him? You might get the idea that the whole opinion sets up a "Lennie Rule" and is a quasi-literature analysis of the character or something.  It was a citation.

Anyway, Supreme Court rulings in the criminal justice or any number of areas provide at best a floor and overall guideline of what must be done. When it comes to mental retardation, insanity or any number of other imperfect lines, there will be a lot of room along the edges. This doesn't mean there should be no line -- insanity is a basic concept in law when applying guilt. It is far from crystal clear in each case. Hopefully, the case will clarify things somewhat.  And, if Lennie can help, go at it.

JFK -- 50 Years Later

I shall have my own "the President has been shot" moment -- hearing about the World Trade Center bombing. Given where I was, there was an old time feel -- heard the first reports on the radio. Didn't watch too much t.v. coverage. Being part of history is somewhat overrated.

The Fosters

Don't want to see the promo! But, nice photo in honor of the upcoming new episodes.

True Diversity

"We're missing a huge amount of diversity on the bench," she said, and not just racial or gender diversity. It bothers her that judges rarely come to the bench from the defense bar, from civil rights experience, or from solo or small practices. She stressed that she did not think a more diverse bench would necessarily decide cases differently. "None of us speak in one voice." Instead, enabling the public to see their own backgrounds reflected in the judiciary would "give the public more confidence" that they are getting a fair hearing.

-- Justice Sotomayor

The concern of a few comments over at Volokh Conspiracy et. al. that the end of the filibuster will lead to a bunch of ideological extreme hacks is a bit amusing. One conservative commentator, who has no love of Obama et. al., cynically replied that given the nature of things no nominee is likely to be "extreme" -- there is a limited realistic pool of Ivy league insiders. Given the make-up of the Supreme Court, putting aside a majority coming from NY (four) and NJ (Alito), hard to deny that on some level.

It's good to look big picture and even with three women etc., a Court with a bunch of mostly establishment (if not all coming from elite backgrounds) appellate judges (Kagan an exception) with a clear prosecutor leaning (even Sotomayor worked as one) is on some level not diverse. Thanks Obama for Sotomayor.

BOOM!

Sen. Grumpy is right about one thing -- I don't think most people even realized you need sixty votes to get things done in the Senate. We won't have a Fail Safe maneuver, will we?

TPM et. al. has the coverage. It is limited to nominations (minus Supreme Court, which is a special case and realistically not likely to happen anyway) though some might wish it just ended the process totally.  But, that isn't how change often works, especially in the Senate.  Fifty-two Democrats voted for it (no, Virginia, both sides aren't quite the same)  with Levin, Pryor (conservative state/up for re-election) and Manchin (conservative) opposing the measure.

[ETA: Some think this is just a short term limit. The filibuster will go bye bye generally, perhaps when the Republicans control everything or something. First, as to Supreme Court nominees, it is largely a false issue. It rarely comes up with so few opportunities and pressure to fill one of nine would kick in. See also, "Vince" here providing some excellent reasons why the Supreme Court is different. His overall reply to "mls" is also excellent. Next, there are a variety of ways to make things difficult here. If a President goes "too far," there can be payback.

Finally, yes, it's possible the filibuster just will go away.  This would not imho be horrible. And, it misconstrues history to suggest the filibuster -- an optional rule -- was fundamental to the Senate's "cooling saucer" role anyway. Six year terms, smaller body and state-wide electorates served that role more often. Recent developments aside. It is just unclear how much it helped Democrats during the Bush years on policy either.]

This is a good thing and overuse by the Rs just made it ridiculous at some point. The Constitution sets up certain limited things that require a supermajority vote, but do not believe it is unconstitutional for each branch to set up procedures that do so as a matter of policy. Still, it is strong medicine and can be abused. It has been. The appointment process, as it structurally must be given the parties involved (politicians), has always been somewhat ideological. More so in recent years, especially since the Nixon/Reagan efforts to fill the courts ideologically.  Filibustering is part of this as is the related "hold" or "blue slip" process, which is more local in nature and leads to problems too.

As a matter of principle, filibustering nominations, especially if it results in blockages long term, is to me a bad policy. Full disclosure -- during the Bush years, I supported it as a balance to what I saw as abuses on the other end.  It didn't help that I felt he was elected in a fraudulent manner and then he played hardball in nominations. People challenge this sentiment by citing cases where he did not -- not saying he did a total sham job here.  It is a matter of degree. As is the number of filibusters, the nature of them and the cloture votes needed.  The "both sides" thread, in answer to a skewered analysis, comments on this in certain cases.  Part of this is that recent Republican presidents have in general been more ideological in judicial appointments than Democrats. Degree. 

In hindsight, the value of the filibustering back then is unclear. The Gang of 14 allowed through multiple ideological leaders.  The effort did address somewhat a certain point of time, a certain high point of ideological hardball by President Bush that was part of a wider effort.  Individual cases can be disputed -- Estrada, e.g., is used as a continual martyr and ultimately Thomas B. Griffith filled his spot, but other conservative high points were confirmed.  Democrats losing the Senate also affected things.

Obama is not playing "hardball" in his picks -- he in general picks centrists and if tit for tat made the Liu filibuster fair (still, them come off as babies calling him mean), fine.  In general, however, the two situations are different. The continual practice of Republicans, recently in the D.C. Circuit battles to block three nominations because they didn't want Obama to fill any of the slots, made the move today sensible. If they showed any signs, including whatever "reasonable" voices they have, to brokering some sort of compromise, it's quite possible a few of the 52 senators wouldn't have acted as they did today. Perhaps, we should thank them.

My support of the filibuster of some appellate nominations in the Bush years was at best a compromise among bad options. Unless the President in some fashion is not playing fair, or the nominations are totally bad (even there, some single judge that survives an up/down vote, will not kill us -- the idea of majority rule [as practiced here] is worth it), requiring sixty votes to confirm people is a bad idea. Especially if senators cannot play nice. It is probably a bad idea generally, except in the short term.

So, congrats for a bit of sanity. Things do change, even in the U.S. Senate.

Cocaine Purchases and Other Minor Crimes

On Wednesday, Radel was sentenced to one year of supervised probation and ordered to pay a $250 fine to a victims' compensation fund. If Radel breaks probation, he faces six months in jail and a $1,000 fine. If he successfully completes the probation, the court would then dismiss the case.

Meanwhile, he won't get in trouble by Republican House leadership even though the reports are that he took awhile to notify them, it being "a substance abuse or an addiction issue."  Rep. Radel (R-Fl) just released a statement that he is ongoing treatment and so forth, taking a leave of absence during which he will donate his salary to charity. That's generous, though some more strict sorts want think a conservative member of Congress (well, politics-wise) should resign. Then again, it wasn't like he was trying to get food stamps or something. 

If buying cocaine is going to get you probation and a small fine (it isn't miniscule but still relatively small as fines go; btw, $250 is how much he offered for the cocaine), perhaps more support should be given to decriminalize marijuana. After all, cocaine is a lot more dangerous.  It is not that I particularly find the sentence wrong, given my general laissez faire sentiments regarding drug criminalization, but it is a pretty notable thing. In some other case, either someone with less connections or unlucky enough to get arrested in a less liberal jurisdiction, much worse can occur.

Lawrence O'Donnell read a few comments putting a different spin on Toronto mayor's antics, citing the addiction issues involved in crack cocaine use. The mayor does seem a troubled soul. If we viewed drug abuse more as a health and morals concern than a criminal one, we would be in a much better state in my mind. There is also some signs of recklessness when a public official buys drugs like this -- you would think people like that have ways to get it with a bit more finesse.  Still, not everyone who uses illegal drugs are just addicts who are desperately in need of help.  I have little knowledge of where Mr. Radel fits in here.

Would appreciate some consistency.

(To be fair, this article references his support of a bill to reform mandatory minimums for drug offenses. The article also says the fine is $260. The story I linked to above has an official document citing cited has him paying that to the person for the drugs, perhaps because he didn't have change?)

The "spirit" of things

McCulloch v. Maryland speaks of the "letter and spirit" of the Constitution and both are used by liberals and conservatives, even if some ridicule the latter as some appeal to penumbras and emanations (the "funny word" argument is very mature). This is seen repeatedly by citations to the Tenth Amendment, which protects states and "the people" by allowing them to retain what is not granted to the feds or otherwise barred.  Repeatedly, however, it is cited as a limit to regulations pursuant to enumerated powers.

The citation is more to the "spirit" of the Tenth Amendment, arguing in effect that federal powers should not be applied so broadly that they invade what is seen as local matters. So, e.g., family law should be left to the states generally speaking, even if pursuant to some enumerated power. Also, the amendment is cited to protect state autonomy, such as not "commandeering" them to pass laws or to enforce federal policies. See, e.g., Printz v. U.S.  Finally, state immunity is protected with 11A help:

The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.

As seen, the actual wording of the amendment is of a limited character. But, sometimes sarcastic criticism of others for ignoring it aside, the literal text is not all that is used.  Thus, states are protected from damage suits even in promotion of congressional powers such as guarding against violating trademarks by state institutions.  A conservative leaning federal judge wrote a good book on this topic and various justices wrote well written opinions (sadly often dissents) explaining the problems, including  from a textual and originalist standpoint. Souter cites John Orth, whose book (from the 1980s, but still useful) on the 11A is recommended; his short book on due process is also a great read. 

Since I do not think "penumbras and emanations" or appeals to the "spirit" of constitutional provisions are wrong as definitional matter ... and am inclined to realize even bad precedent should be given stare decisis weight at some point ... it seems to me that we are stuck with some of the principles found in such "federalist" cases.  Still, the line-drawing is a bit curious. For instance, the state immunity rule is not applied to the Fourteenth Amendment. I was under the impression this was a matter of it coming after the Eleventh. This might have been cited somewhere, but that is not quite the reason.  A key case on the point noted:

But we think that the Eleventh Amendment, and the principle of state sovereignty which it embodies, see Hans v. Louisiana, 134 U. S. 1 (1890), necessarily limited by the enforcement provisions of § 5 of the Fourteenth Amendment. In that section Congress is expressly granted authority to enforce "by appropriate legislation" the substantive provisions of the Fourteenth Amendment, which themselves embody significant limitations on state authority.

Congress is also "expressly granted" the power to regulate commerce with Indian tribes, to allude to a case cited, and the power to pass laws "necessary and proper" to that end. If state immunity is so central that infringement is not "proper," why should it be "appropriate"?  It's a fine line that as Justice Stevens noted separately doesn't quite hold up. The 11A was in response to a case where a citizen from another state successfully used the Supreme Court's diversity jurisdiction to settle a contractual dispute.  Souter in his Seminole Tribe dissent argues this is what the amendment addresses, not federal question matters (e.g., disputes over post offices), even if a citizen from another state sues. There is a good case for that.

We need not go that far. We can even require "clear statements" before deciding federal legislation allows liability. As a matter of policy, it also might be advisable to limit state liability for various reasons. At least, certain things are debatable. When clear liability is present, however, it doesn't make much sense as a matter of principle to deny jurisdiction. Rights, including statutory in nature, warrant remedies.

Where a State has consented to join a federal-state cooperative project, it is realistic to conclude that the State has agreed to assume its obligations under that legislation. There is nothing in the Eleventh Amendment to suggest a difference between suits at law and suits in equity, for it treats the two without distinction. If common sense has any role to play in constitutional adjudication, once there is a waiver of immunity it must be true that it is complete so far as effective operation of the state-federal joint welfare program is concerned.

Justice Douglas' argument should be applied generally.  But, so it goes. At the very least, is "spirit" is going to override text, perhaps the principle should be applied consistently. After all, the critics of this policy aren't all on one side. Certain libertarian voices (as I saw in certain Cato Supreme Court essays) support court remedies, litigation often seen as the best policy above and beyond various types of regulation. 

Criticize But Realize What You Got

It troubles me that voices on the left have such faint praise for ACA, often missing the circle of the possible. I comment there, but lifestyle choices? Sure. But, health insurance costs are a major concern and what is the government to do about the former? Also, the law helps loads of people. If even the left says "eh" to this, what hope is there?

SCOTUS Watch: Texas Abortion Law

And Also: See my back/forth with someone here who compares the burdens of pregnancy to being hit by a pebble or wind. On the issue of not serving people in public accommodations, the person is a strict libertarian sort. Forcing people to be a good Samaritan here? Eh.  To allude to Glenn Greenwald, the person is not special himself -- it is that the sentiment is sadly not atypical. Selective concerns are key here.

abortion clinics in Texas whose physicians do not have admitting privileges at a hospital within 30 miles of the clinic were forced to cease offering abortions.  And it means that women who were planning to receive abortions at those clinics were forced to go elsewhere—in some cases 100 miles or more—to obtain a safe abortion, or else not to obtain one at all.

After a federal district judge in a limited way blocked Texas' new restrictive abortion law, some noted the weakly reasoned nature of the appellate court's removal of the stay.  The logic expressly got support of two justices (Scalia/Alito), three aiding it by inaction -- it was left to the four liberals (led by Breyer) to explain why the original stay order was correct. Scalia argued that the dissent didn't really make their case.

All involved used a balancing test that took into consideration various concerns. It is not apparent that each prong has to be met, so not sure how Scalia shows the dissent fails. For instance, yes, the likely success of the provision on appeal was one factor, but ultimately it is left to a "balance of harms" test.  The closing down of clinics provide direct harms to those who currently need them in a "permanent" fashion. A stay that stops the state from enforcing the law is only a temporary burden.

This puts aside the fact that the district court ruling was probably too narrow. Interfering with lower court procedures in these cases is something the Supreme Court really never seems to do, so this result is far from surprising, even beyond the abortion context. The vote was as close as it was because the move here was particularly dubious.  The USSC has not shown any desire to actually take any abortion restriction cases, though the slew of efforts in recent years just might force their hand eventually. Given Kennedy is the swing vote, this might be benign neglect.

[Added] Rick Hasen, who usually blogs about elections, discusses the order as a matter of remedies.  He notes that is unusual for there to be an opinion in such a case at all, how it is a red flag that the case is a loser (at this stage, unlike Bush v. Gore which was cited, I think that's a bit premature) and noted that it used to be that the status quo (clinics not closing etc.) would be a concern. This has changed of late:

Justice Scalia’s rejection of the status quo represents yet another change in injunction practice before the Supreme Court, part of a broader change I plan to write about soon in which injunctions are harder for plaintiffs to get and easier for defendants to get blocked or overturned.

Such nuances often have major effects.

---

* I  first read about this via Twitter, the reporter not just informing us about how "Sotomayor says she wears a continuous blood testing device for her diabetes. It beeps during her speech- so she asks for a sugar cube!" or Sotomayor's opinion that "people w/ defense backgrounds or civil rts or small practice or solo practice.” Still, nice sentiment -- again, thanks Obama, for two good justices.

As to lower court judges, it is time to end the filibuster there, or at least seriously alter it. Obama should take it up a notch. On that front, the moronic quote from the day, usually reasonable sort edition:

Sen. Carl Levin (MI), a consistent Democratic opponent of filibuster reform, said the GOP's recent judicial blockade hasn't changed his mind. "If the majority can change the rules, there are no rules," he told reporters.

Great logic there. 

Enrollment On The Rise

It would be helpful if all this "Obamacare is failing" coverage took more time to explain the logic of the policy and what Obama is trying to do (however imperfectly) and the problems with the status quo (that the other side does nothing really to fix). Oh, maybe realize it takes a bit of time to address. Not merely a month! The "disaster" is also overblown.

MNF: Horror Movie Monsters Are Easier to Stop Edition

After beating the Saints with about a minute to get a TD, the Pats (with three time outs) tried to do the same with :59. In what might be a sort of record, they got in 12 plays. After three incompletions, with the help of a penalty, they marched down to the 18 with three seconds left. Interception in end zone; flag picked up. Panthers win.

Supreme Court Watch: Order List (Death Penalty)

There were two dissents (Alito/Scalia, Sotomayor/Breyer) and one statement (Alito )included in an otherwise ho-hum order list released today. Like an interesting end-note or concurring opinion, this stuff can be interesting to us nerds. One concerned a habeas matter. The solo statement concerned a district judge's personal affirmative action campaign where he wanted evidence of law firm diversity in some cases he heard. Sounds like the judge's heart is in the right place, but not sure if this is a kosher bit of judicial discretion. 

Of the 32 States that currently authorize capital punishment, 31 require jury participation in the sentencing decision; only Montana leaves the jury with no sentencing role in capital cases. In 27 of those 31 States, plus the federal system, the jury’s decision to impose life imprisonment is final and may not be disturbed by the trial judge under any circumstance. That leaves four States in which the jury has a role in sentencing but is not the final decisionmaker.  In Nebraska, the jury is  responsible for finding aggravating circumstances, while a three-judge panel determines mitigating circumstances and weighs them against the aggravating circumstances to make the ultimate sentencing decision.  Three States—Alabama, Delaware, and Florida—permit the trial judge to override the jury’s sentencing decision.  [cites removed]

The other dissent is one of Justice Sotomayor's few but notable efforts to red flag troubling criminal defense issues. Also on the death penalty front, this year in review from California is the latest of interesting essays on that subject at Verdict from Paula Mitchell.  The issue here is the practice where the jury determines if a defendant deserves the death penalty, but it is merely advisory. As shown, this is the practice in only a few states, only one that have actually done it since 1999 (the one time that it occurred in Delaware was overturned on appeal). Justices Breyer and Stevens flagged this issue in the past, noting if you are going to have a death penalty, the jury should be the ones who decide who gets it.

The "unusual" nature of this procedure is duly noted by numbers alone. The trick is to determine if it is constitutionally so.* I think the death penalty is wrong as a matter of policy and constitutional practice, but do think granting its legitimacy, requiring juries make the ultimate choice here is appropriate for the reasons these justices suggest. The jury is the ultimate representatives of the people in the criminal justice system, only more so in this most sensitive matter. The case here adds a further problem because the judge was influenced by additional facts that the jury itself did not have available. This appears to violate current doctrine where facts that increase punishment has to be determined by the finder of fact (that is, the jury when it is used). 

And, to the extent that the overrides were influenced by the judges being elected also is troubling.  An argument can be made that this is legitimate since the people of the community thus has a chance to influence justice as they do when they vote in legislators and such. But, as a general matter, judges are held to be somewhat above the fray. Having judicial questions of life and death, especially when it overrides at divided or even unanimous votes of mercy (as noted in the dissent, to the extent judges override the jury, it is about 10:1 against votes of life, only a few times were death sentences overridden by this procedure), based on electoral concerns leaves a bad taste in one's mouth.

An election -- and the judge here might be concerned about upcoming elections not just following the will of the electorate that voted him/her in -- provides an at best flawed "expression" of the conscience of the community here. The jury has a special role -- they are representatives of the community, the people, who specifically examine the facts of a specific case and defendant. This is different from some general sentiment on how the criminal justice system should work. The "guilt" necessary to  die is ultimately only partially an objective matter, ultimately a subjective matter that a jury -- representing various views -- would be best able to make, as far as anyone could. It is seems to me unjust to have one judge override their judgement in this fashion. 

On some level, this is just yet another means to remove responsibility, the jury now only advisory on this basic matter, quite unusually here. 

---

* My understanding of "cruel and unusual," somewhat reflective of practice, is that the 8A term is a term of art.  More controversially, I personally think both things might be banned -- something cruel as well as certain things constitutionally unusual. The text does allow this -- I can like/dislike two things and use "and" without both being required.

A punishment need not necessarily be both cruel and unusual to violate the amendment, e.g., if it violates current standards of decency. A headcount might suggest such and such is not "unusual" in some fashion, but it violates the amendment if it doesn't meet that test. A headcount is less important as well when what is at issue is not simply a ban, but the sentencing procedure. This might be partially because due process of law in general, not merely the 8A, is at stake here.

Either way, both are involved here -- it is rarely applied (basically one state) and "cruel" in not following the appropriately humane process. The fact that it matters mostly in overturning life sentences also is notable:

In most cases justice is not better served by terminating the life of the perpetrator rather than confining him and preserving the possibility that he and the system will find ways to allow him to understand the enormity of his offense.

Leaving open a judicial veto can go both ways, however.

More of Same

Giants beat another iffy QB and Jets cannot win two in the row -- the rookie QB didn't help, but the shellacking was a team effort. Jets now seem to be tied with Miami for that "one and done" final playoff spot with Miami actually winning. TB also won again. [KC finally lost.]

Finding your voice to say 'I had an abortion' [click photo]

It continues to amaze and trouble me that actually having an abortion is such a taboo subject though it is now and then at least referenced in popular culture. Is it really so surprising that access continues to be threatened? These things aren't just symbolic.

Rev. Joe: Understanding The Hebrew Bible: A Reader's Guide

While not finding a good book length discussion of the Qur'an as of yet (the "very brief" book was of some value as were others to touch upon a few themes) yet, did find this helpful account by Elliott Rabin. Have long found the Bible an interesting work, both as text and story. Personally, I think a full understanding that goes beyond literal belief the best policy.

"Why Scalia Should Have Voted to Overturn DOMA"

Not quite Andrew Koppelman -- fails a bit at the end, when it clouds Scalia's position on the 14A (basically it only covers race, some open-ended comment or two he made notwithstanding), but the rest is pretty good. And, it underlines the makeweight nature of DOMA, sec. 3 unless (such is the case) we have blinders. Great formatting.

Speak

The t.v. movie version of this classic modern day teenage novel about a frosh who deals with the aftereffects of being raped was pretty good though the translation to screen was a bit imperfect -- her not speaking much didn't quite come thru. The book is a bit different at times, but also works better on that given its medium. Both worthwhile.

Fernandez v. California (4A) Orals

Issue: Whether, under Georgia v. Randolph, a defendant must be personally present and objecting when police officers ask a co-tenant for consent to conduct a warrantless search or whether a defendant’s previously stated objection, while physically present, to a warrantless search is a continuing assertion of Fourth Amendment rights which cannot be overridden by a co-tenant.

The previous case (5-3, Breyer concurring) concerned a husband and wife being present at the premises, with no special circumstances, and there being a conflict on consent to entry that led to obtaining evidence.  Breyer concurred noting possible special circumstances warrants some sort of "totality of circumstances" rule.  The majority noted it was just deciding this case -- "a straightforward application of the rule that a physically present inhabitant's express refusal of consent to a police search is dispositive." It argued "customary social understanding" warrants not allowing a person in when there is a debate between the two co-tenants, even given the assumption a married couple would more than some others be able to speak for the other party. Stevens concurred as well, noting how social custom (e.g., men having veto power) change.

Here, opposition by a co-tenant was shown, but the police got around it because he was then arrested.  Hour later, they come back, get consent from the live-in girlfriend (and possible victim of domestic violence, who also generally might fear consenting in front of her  boyfriend).  These are not sympathetic facts, but not sympathetic to whom?  Me, I wonder why they cannot simply obtain a warrant -- they had an hour and by all lights had more time to get a warrant while the person was in custody.  There is also an exception for "exigent circumstances," if they had to enter to protect the girlfriend, perhaps, or because there was an ongoing crime.  Finally, it is not like the guy was in custody for a long time.  The question can be asked so broadly that it seems dubious -- as if someone in jail for over a year as trial is ongoing, no consent.  Though there a warrant seems pretty easy.

The state, however, set forth this rule:

JUSTICE GINSBURG: [I]f Fernandez left -- he's made known his objection and then he says I'm going to pick up something at the drugstore. The minute he leaves, can the police then say to his cohabitant, do you consent? She says, yes. Police come in?

MR. KARLIN: Yes, Your Honor, it would.  When a person leaves a residence, and this was the linchpin of Randolph, when a person leaves the residence, social expectations change, they change dramatically. You're not faced with the situation of pushing past someone who is saying "stay out."

I strenuously oppose someone coming in. I make my opinions known.  I step away for a minute.  Dramatic change!  Hey, come on in. Have a party.  Seriously?  The precedent does help, but admits to "formalism" and appeals to "practicality":

So long as there is no evidence that the police have removed the potentially objecting tenant from the entrance for the sake of avoiding a possible objection, there is practical value in the simple clarity of complementary rules, one recognizing the co-tenant's permission when there is no fellow occupant on hand, the other according dispositive weight to the fellow occupant's contrary indication when he expresses it.

Jeffrey Fisher, criminal defendant advocate voice extraordinaire, admitted upon questioning from Sotomayor that pretext is not shown here, and furthermore (a bit too far here) accepted that pretext is looked with disfavor by the USSC in Fourth Amendment cases. So might be true, inviting it, but Randolph specifically flags it. This bit of dictum is a problem, even if the reason he was absent was the government itself taking him away (a concern for a few justices).  It allows for a narrow ruling by let's say Kennedy (who joined Randolph) though it arguably violates the ruling's spirit.  There is no "occupant" here any more, but if an arrest can trump opposition, even from an hour before, there is room for abuse.  Still, we can see some value with that sort of line -- an arrest requires some degree of probable cause etc. too -- without Karlin's bit of silliness.  The proviso does answer Breyer's hypo where the police might by pretext (a phone call) get the person away from the house, which is totally likely to happen in some cases.  Such trickery is not unknown.

In the DNA case, Scalia noted that conviction could trump the right to avoid a search. The majority thought arrest did as applied.  This can be the rule here -- arrest might be a special situation.  However, the state actually noted an arrest doesn't waive privacy here.  The question is what rule should apply. The "the moment I leave" rule seems ridiculous, at the very least, when it is clearly known (here because the person said so an hour before!) that the person doesn't want entry.  There is "customary social understanding" on the point.  To my understanding.

Anyway, the case is likely to be decided on fairly narrow grounds, while providing a scenario that provides a good window into common sense application of constitutional principles.  

Gov. Kasich delays execution to explore organ donation

Some analysis/reactions here. I oppose the death penalty, but if the person truly voluntarily wants to donate, not quite sure we should paternally deny him the option -- if it's possible, that is. Not sure why it would take so much time to determine.

PPACA Enrollment Is Going Better Than You Think

And Also:  Not saying the optics of the thing isn't an issue or there is no problem. But, even beyond reminding people what else the law does (it's like dealing with the troubles of DMV and reminding people you get this very useful id, a chance to register to vote and the ability to drive in the bargain), the problems with this specific matter has been overblown. Still, Daily Kos has a reasonable take on the Landrieu bill that on some level seems to be a bad idea and an act of chicken little legislating.

Yep. There's no running away from Obamacare if you're a Democrat. So put all the pressure you want on Obama to get things fixed, but you'd better stick together even if things get tougher than they are now. If you don't hang together, you will surely all hang separately.

Kevin Drum, sane liberal. This after some pushback about his earlier piece in which he voiced concern about the "rollout"-- it has been around a month!!!!! -- after noting he wasn't sure what would happen, but then didn't know the result of the upcoming football game either, so why not opine?  The continue blather to me is a sort of sky is falling mantra that I find it hard to take seriously -- so there is some sort of problem (aided and abetted by certain states -- dare not make it partisan! -- not joined exchanges) with the website. Fine. It's only a month in. Chill a bit!

"The figure of 40,000 disclosed Monday did not include Medicaid sign-ups. At least 440,000 people have signed up for Medicaid through the health-care initiative, according to Avalere Health, a consulting firm that has been tracking sign-ups. Budget forecasters have projected that in 2014 there will be a much more even balance between private insurance and Medicaid participants."

This is one comment to his earlier post that starts to frame things a tad bit differently. Just one of six good signs.  Even this discussion, however, is off, in a basic reason that continues to drive me nuts. There is talk of "progress in implementing" the law. First, I still refuse to use the term "Obamacare"-- the law was crafted by Congress and the President left them much discretion to do so. And, it is for the whole country.  It is misleading and dubious branding to make something so tied to the leader of one side's political party. Is Social Security "FDR Security"? Is the Civil Rights Act of 1964 to be named after LBJ? No, it is for everyone, Democrat and Republican. I realize the arguments of some. Don't buy it as a whole.

Anyway, the law was "implemented" since 2010. Why don't those implementations count? Now and then, particularly when dealing with the contraceptive mandate (which doesn't just cover that), we are told about other aspects of the law. But, repeatedly, it just is not made clear what exactly is involved here. Blame whomever -- the media, politicians, the Obama Propaganda and Bottle-washing Service. It is just plain insane.  While commenting about this issue while waiting for the KC/Denver game, maybe Kevin Drum from Mother Jones' can do a bit of that?

This is almost as annoying as those "shockwave" error messages.

Women’s Health Protection Act

The purpose of the new bill is to force states to prove that the dozens of measures ostensibly aimed at protecting women’s health actually do that.

Kudos. Abortion is a health care matter. States want to burden health in promotion of certain anti-women religious laden views. Let's go on the offensive against the offensive!

DC Circuit Vacancies

Norm Ornstein, a congressional expert at the conservative American Enterprise Institute, told TPM that the GOP's mass filibuster of D.C. Circuit nominees is unprecedented and an attempt at "nullification." If Republicans don't let up, he said, then "then I don't see much other choice" for Democrats other than to go nuclear.

No no. Both sides are at fault! Like the NLRB business, this is worse than usual. When something imperfect like filibusters are used, best not to be really stupid and corrupt.

Gettyburg Address

It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced.

Stephen Colbert is one of many who took part in a recitation of the words for the upcoming 150th Anniversary. It is altogether fitting and proper that [they] should do this.

Now, who will beat KC?

They blew a fifteen point lead, but the karma got to Miami in the end, so Tampa finally won -- right after the other no win team did. So, the only question is who will beat KC? Denver.

Women's Barracks

This book from the feminist pulp series is appropriate reading today -- an "account of life among female Free French soldiers in a London barracks during World War II." The author based in on her own experiences. The vignette style gets a bit repetitive, but it is well written and thoughtful with good supplementary material.

Honor veterans ... promote peace

Happy Veteran's Day. I might not agree with all they are required to do, but it's fitting and proper to honor them. Holidays help focus on things that should be clear daily (e.g., moms are special), and this is one such day. Be well.

"Looting" = buying stuff as authorized by the government

Truly "stranger in a strange land" territory here, including opinions that the Taking Clause authorizes "theft," disagreement with the term = "you have no problem with it," and Best Buy selling stuff akin to a private party being forced to sell private items. And, you know, Hitler.

NYG Win Badly Again

Fans will take it. Jags also will take their first win and the opponents of the Bears/Packers will accept they didn't beat in the end the primary (or even back-up for the Packers, sorry Giants) QBs. Rams had an upset -- and unlike TB last week, didn't blow it. Meanwhile, Admission sorta sucked -- Tina Fey needs better material.

"Con Men Prey on Confusion Over Health Care Act"

Article in today's NYT. No, it is not (but could be) about Republicans.

Rev. Joe -- Parental Practices World-wide

For some reason, the book trailer video to How Eskimos Keep Their Babies Warm doesn't come up via a search here, but the author's video here is interesting too.  As is the book that promotes the universalism "Rev. Joe" does. H/t this blog. As if I don't have enough to read!

Town of Greece orals

Along with the Bond orals, I was somewhat depressed by this, though the arguments (including by the deputy SG who finally got another chance in front of the big boys/girls) generally were better as a whole.

Again, the "liberals" came off the best though to be fair, Alito and Roberts at times add something useful to the affair in these cases. They both often (when Roberts doesn't go the light route) are rather harsh or sarcastic, but have a pretty good track record ... at least as compared to Scalia, who seems to be slumming it of late (this time, he noted how his question at one point had a nice alliterative flavor).  Still ...

Kennedy at one point wondered (darn assistant AG following the test set forth by precedent -- Marsh -- again) how chaplains could be asked to not proselytize -- what is the point of them being there? Well, putting aside that (as the ACLU brief cited last time notes) many legislatures do counsel general invocations to be inclusive [the challenger's attorney noted that was done back in the day too, but it just was that inclusive then was bland Protestantism], "tolerable acknowledgment of beliefs widely held among the people of this country." They are not their to preach their particular religious faith -- they are to serve the interests of  the group.

There was not much interest -- other than maybe from Breyer -- to compromise much here or note the special nature of the small town meeting context here. The fact there might somewhere be teen pages in the gallery in the U.S. Congress -- to allude to a bit noted by the town -- doesn't really make it the same as a town meeting which is a more small and contained group, including those there to petition right there. It was left, of course, to couple of the liberals to note such things.

Alito basically used current religious diversity against the challengers. The usual argument here is that diversity makes establishments more problematic, since there is more of a split of views. Here, there are so many diverse views, there just cannot be a truly non-sectarian prayer. I covered this already, so won't belabor the point, but that is a sort of nice Catch 22. Finally, as even the town lawyer noted, there have been non-religious (or atheist/humanist/whatever) invocations made. It's possible to have a system where a majority of the prayers aren't Christian in nature. 

Bets on how many opinions there are -- pretty sure Ginsburg/Sotomayor/Kagan will write a separate concurrence or dissent.  Justice Sotomayor joined Stevens in Salazar v. Buono, a military display case that Kagan argued. Ginsburg also has generally been a separationist here.

Bond orals

And Also: Owners of construction company and vehicle safety systems companies  in a "closely owned" corporation was deemed likely victors in a contraceptive mandate case in the 7th Cir., a split ruling with a lot of verbiage.  This sounds like a possible compromise approach, though I still find the whole thing specious.

The person who help establish ScotusBlog has been a repeat player (again this week), but former SG Paul Clement has been the sort of modern day Daniel Webster in this field. Those who might disagree with his conservative bona fides still praise his abilities. I'll buy that. But, in various orals, so sorry, he comes off as a jerk, and one whose arguments are lame. I thought so -- on points -- in the DOMA case.

And, did so in Bond, even though the majority basically being with him makes the matter somewhat moot.  It might just be that his voice annoys me -- still listening to him was pretty tiresome -- the major theme was that the crime here was just sooooo obviously local and thus was not a proper enforcement of the treaty power.  Lopez and Morrison was cited, but they were not really on point -- those cases held certain activity was not "commercial" for purposes of the Commerce Clause.  Printz would have been a better cite -- it covered the "proper" nature of enforcing the power.

A major problem for me was that the clear lines his tone deemed so obvious turned out -- thanks from questioning from the women justices (Breyer was dubious about the government's position, trying to find some compromise position, such as citing the annex of the chemical weapons treaty in question) -- turned out not to be so clear. For instance, the very same act -- domestic as it might be on some level -- could be prosecuted if the chemical was completely banned (e.g., sarin). In fact, the very same chemical could be targeted, if used in a different way -- e.g., if a terrorist put it on the doorknobs of lots of homes in a certain location.

Gonzalez v. Raich was cited -- there a complete ban of marijuana was being enforced.  Unsure how the growing state legalization policy (one in which the feds accept somewhat by limited non-enforcement) factors in here.  Still, the overall line doesn't seem to work. Scheduled drugs, e.g., are in various cases highly regulated, but not completely banned. Misuse (and marijuana itself is not completely banned, to be technical about it) can be a federal matter, even though medicine has traditionally been a state power. [As an aside, Scalia raised a family law hypo and noted how that is simply not a federal concern. This is hyperbole -- it is/was in various ways, including DOMA, sec. 3, which he would uphold!.]

The SG was not in the mood for fine tuning, but it seems to be the carefully regulated chemicals in question are of apiece. Opiates, e.g., are not akin to aspirin. And, the administration of such a rule need not be a matter of some set list as long as some general reasonable rule is in place. Though I found the other side here dubious on the merits, to be fair, this flags a concern -- the SG did not (even when pressed by Breyer, a red flag) want to provide much of a "limit" to the Treaty Power in the sense of something that violated federalism concerns though briefly nodded to there probably being one. Since I think the facts of this case are not the outer limit of the treaty power, this hesitance was strategically risky.

His overall argument was that this treaty was agreed by both sides to be valid, so enforcement would be as well. He did not want to go into the idea that certain "self-executing" treaties might be acceptable, but not certain enabling legislation.  The justices -- other than obviously thinking this prosecution inane -- were worried about the breath of certain modern treaties, which cover broad concerns, such as the fate of women or overall well being of the population. At times, the U.S. doesn't ratify because some fear it will lead to intrusive requirements (the home schooling movement, e.g., is concerned about one involving disability rights) though they might just be "self-executing" -- hortatory without teeth.

I can see how some of these treaties, if taken too far, can result in federal legislation on all sorts of things that would otherwise be of local concern. The treaty power intentionally was left open-ended, since some international agreements will affect otherwise local matters, such as debt collection, land matters, and back then, slavery.  We can also entrust the structural limits and political process -- President makes, 2/3 of Senate required to ratify and then the usual process to pass enabling legislation such as law involved in this case. But, if some limit, including if something is not deemed truly "treaty-like," is necessary, so be it. The specter (the horror) of some treaty that requires the U.S. to end the death penalty or micromanage school lunches directly to promote the human right to adequate food might lead to such concerns. I get that.

Still, to repeat myself, chemical weapons are an international concern, and the treaty here is appropriate. The specific application here is also proper, including given the details of the case, down to (as Ginsburg noted) the behavior of the local police. The SG also should have underlined that the chemicals were not just run of the mill, but carefully regulated by the feds, and not of the caliber of chocolate for dogs or adding too much cleanser and poisoning goldfish. Such things, along with the not so clear lines of Clement when pressed, was not apparently much of a concern for a majority of the justices.  They wanted more limits. We shall see.

Vikings Win In the U.S.

The other win was in London. They have had a policy of scoring some points but blowing it ... almost did that here, even after coming back from a deep hole. But, they had a goal line stand and helped the Giants fantasy playoff hopes. Turned out to be a decent game.

More on Legislative Prayer

Joan Biskupic (who wrote a bio of O'Connor and Scalia and last I heard is doing something about Sotomayor) wrote a piece on the legislative prayer case (the automated links aside, "Greece" is not the country, it is a town in NY).  One theme was that the justices found it hard to imagine clean lines here to draw, suggesting a desire to just let the legislatures to deal with the details. This is the basic realistic stance of this analysis from a Catholic friendly blog, since the alternative (an across the board ban) is just not going to happen -- it didn't happen with the Burger Court.

As noted by the brief cited here, I don't believe it impossible to set some standards here.  A comment to yesterday's post supported a straight rule that would cover "under God" or messages on coins along with the court crier asking God to save the honorable court -- or is it more a statement of opinion and appeal for agreement?  It would to me be better to avoid such things and Mr. Newdow had a point.  Still, there are shades of wrong, and even Scalia in the Ten Commandment cases realized "Under Jesus" would be a problem. So are legislative prayer practices that advance that.

The direct precedent here is Marsh v. Chambers, which appealed to history (unlike litigants, justices need not respect precedent, so the town's reliance on that only went over so well with the justices).  If anything, that was a more problematic case since it concerned a long term chaplain of one denomination, not a system of constantly changing clergy. As noted here [they discuss the oral arguments here], however, the nature of town board meetings complicate things more than invocations in front of some legislatures (including the U.S. Congress).  There is thus various ways to decide the question narrowly though that might require some willingness to police things.

Anyway, Marsh does not say historical practice is all that matters; it does say it is a strong thing to go against, especially "unambiguous and unbroken history of more than 200 years" (putting aside the dubious nature of that sentiment looking at the details ... still, as noted earlier, the town had a moment of silence policy until recently). The opinion also noted the concern of sectarian prayers, but could avoid the question, since the practice there no longer was deemed to have that character.

The content of the prayer is not of concern to judges where, as here, there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief. That being so, it is not for us to embark on a sensitive evaluation or to parse the content of a particular prayer.

Some lower courts have required the prayers to be non-sectarian and this is what a leading expert on religious freedom, Douglas Laycock, argued in support of the challengers here. And, this is what got negative pushback, since it was unclear to various justices what that would mean. But, again, even Scalia noted "discriminating against other religions" and "publicly honoring God" are different for First Amendment purposes. As suggested by the majority in that very case, even honoring God is a religious act that can be problematic when it obtains the endorsement of the state. Nonetheless, in for the calf, does not mean we need to be in for the cow, even if being vegan is best overall.

And, such in the case here. The town, after all, argues that the intent of the policy is inclusive. They don't want to merely invite or promote Christianity, even if the lower court held that was the ultimate effect. At the very least, the Court should reaffirm that the effort is required here, even if it requires some degree of oversight. Making sure that legislative prayers aren't just each and every day in promotion of one faith is content based policy, but it is proper here to respect the beliefs of all at the bare minimum.  The prayers here are not merely speeches on the floor or the voluntary choice of a President to say "so help me God." They are the product of an established policy and current reality warrant such a rule.

Marsh can be read to not require this if there is no bad intent or "exploitation" to advance certain religions. But, at some point, the effect prong of either the Lemon or endorsement test should have some bite here.  (See also, Windsor v. U.S., where the effect of DOMA, sec. 3 mattered).  It is this reading of Marsh -- non-sectarian and concerns for effects that was honored a few years later in dicta, even managing to get five justices in a case that overall was split numerous ways.  Problem is the dicta was directly in response to a dissent written by Kennedy.

They should have left the moment of silence in -- the change, even if the Court majority very well might not think so, seems to me a means to "exploit" a chance to advance a certain view of religion, the one not honored by Jesus -- he suggested praying in private. Then, he wasn't big on oaths either, so like selective citation of a few unclear comments about homosexual behavior, that just is more of the same really.

At any rate, if we will have certain minimal establishments, they should be cabined.*  The alternative is, e.g., some locality not allowing Wiccans to give an invocation, or (as the ACLU brief noted), thinking better of inviting imans or other unpopular types. Even if the rules seem equal.

---

* Something like this came to mind while watching Pan Am -- a stewardess did something distasteful as a CYA move and another let her know her actions were known and not supported. This made her feel somewhat guilty, which is only a limited restraint, but one all the same. 

Legislative Prayer Case

I can see why Justice Kennedy would not think history alone should be our guide (see, e.g., Lawrence v. Texas), but the ongoing reasonableness of the practice in today's world. Also, McCreary might be our guide -- New York moved from a more inclusive (moment of silence) to problematic (prayer) rule quite recently. As to the problems of judicial line drawing, see Bond, this appears to be a variable concern for some justices. Finally, Justice Scalia, public meetings with established rules and a private dinner? Not quite same thing.

Election Results

Mostly expected locally, except that the judicial retirement ballot measure, which the NYT noted is somewhat controversial for various reasons (part political), seems on its way to defeat. The Democrat appears to have won in the Virginia governor's race, the libertarian beating the margin of victory. Meanwhile, congrats Illinois on SSM.

Bond, Carol Anne Bond

And More: I can understand someone wondering why a personal dispute of this sort should be a "treaty" concern, but quite honestly find it dubious to strike down this prosecution, especially given the law itself has "limits," contra some implications.

Carol Bond obtained particularly dangerous atypical chemicals, not ammonia or something, via interstate commerce, for the particular purpose of harming someone.  It isn't even the 'domestic use,' since it was admitted by Paul Clement particular chemicals (e.g., sarin gas) might be barred even here.  If the exact same chemicals were used by a terrorist, I would think it wouldn't surprise most people that it is prosecuted to advance the treaty.

Chemical weapons are dangerous enough to international well being to go a bit overboard, even if this is that, but apparently there is some chance the USSC will rule not quite like this. Well, the devil then will be in the details. I'm wary about that.

This case arises from a bitter personal dispute, leading to the criminal acts charged here. Petitioner Carol Anne Bond lived outside Philadelphia, Pennsylvania. After dis-covering that her close friend was pregnant and that the father was Bond’s husband, Bond sought revenge. Bond subjected the woman to a campaign of harassing telephone calls and letters, acts that resulted in a criminal conviction on a minor state charge. Bond persisted in her hostile acts, placing caustic substances on objects the woman was likely to touch, including her mailbox, car door handle, and front doorknob. Bond’s victim suffered a minor burn on her hand and contacted federal investigators, who identified Bond as the perpetrator.

Pretty obscure dicta in an old case was applied to block a claim, but after the feds agreed the woman had standing, the USSC unanimously agreed -- given the very judicial power to decide was involved, the government admitting error on the point was not enough. The matter is back to cover the merits, specifically an as applied challenge to the treaty enforcement mechanism at stake. Orals was today and justices were concerned about limits, which popped up a bit the first time around too.

[ETA: The link above to various materials include this short amicus -- of a piece to others by him -- that is well worth a look.  Marty Lederman says more about the case here, including discussing Breyer, who might be open to "lose the battle, win the war" on this issue here.  But, including see Lederman's conclusion, is that really appropriate? As to Alito's crossing national borders rule, so the speak, will he apply things as strictly regarding drugs?  Cf. Gonzalez v. Raich.]

The excerpt (in an opinion by Kennedy) hints that some justices thought this was a dubious use of federal crime enforcement. A domestic dispute leads to "a minor state charge" and the victim "suffered a minor burn." Justices noted the possible range of enforcement against chemical weapons, including one purchased on Amazon. Chocolate, noted Alito, can poison dogs. Household chemicals might become a federal prosecution matter if not used in the proper fashion in a cleaning run. More widely, any local matter might become a national one if the right treaty was involved.  My kingdom for a "limiting principle"!

The issue here involved chemicals obtained in interstate commerce, a car was involved (another federally regulated item touching upon that) and the mails were affected (though she did not plea guilty to misuse of chemicals there). As noted here, perhaps the Commerce Clause argument is waived, but as Marty Lederman notes, that doesn't end the matter -- if the concern is appropriately national, even in the treaty context, an as applied challenge can fail.  Note the woman should be out of prison now, was also charged with a separate crime, but lingering effects still continue.

The link ("back") provides various materials, including the (to me) convincing lower court ruling and the brief of the government. Various important matters are addressed there. Why was this made into a federal case? After repeated attempts to handle things locally, which included being told the powder involved might be illegal drugs, her mailbox became an issue. The local officials counseled her to call the feds and the post office got involved. The feds also turned out to be more aware of the nature of the chemicals involved, both regulated federally because of their dangerous nature. And, only one was easily obtained by the general public, contra a quip by Paul Clement (yes him again) about Amazon.

Somewhat like the ACA cases, the limiting principle concern is misplaced here. As was the case in the seminal case on treaty power, Missouri v. Holland, the claim is not that a treaty can trump everything. It cannot breach constitutional no noes, including structural principles, though on that front, the ruling did note the case might be harder. Treaties are by design national and there is no "subject matter" provisions there, that is, even things usually local (like property claims) can suitably be found in treaties. The Treaty of Paris that ended the Revolutionary War is a case in point and a central concern was to have a federal means to enforce its terms.  One can probably imagine something not a treaty (e.g., not with a nation state), but the chemical weapons treaty at stake is not that.

Contrary to petitioner’s contention, her repeated use of highly toxic specialty chemicals to harm Myrlinda Haynes was not for a “peaceful purpose.” That commonsense proposition is confirmed by the statutory definition of the term, which is limited to socially productive, non-malicious activities. 

The concern here is that a purely local domestic dispute is involved here, either not covered by the terms or not a "proper" enforcement of the treaty in question. Misuse of chemical weapons is an international concern and this involves protecting against their misuse domestically.  There are limits -- “[i]ndustrial, agricultural, research, medical, pharmaceutical or other peaceful purposes” and self-defensive usages (e.g. mace) are not included. But, she admitted to using the chemicals as weapons. The harm was thankfully minimal, but they are deadly chemicals, including when touched or inhaled. Her child was nearby. Carol Anne Bond was a microbiologist, just the sort of person the feds should have special concern about here. The locals misconstrued the situation. 

The quote above from the government's brief is on point -- it is improper and bordering frivolous to have the courts strike down this application of the law in question. Some narrow definition of "peaceful" is possible, but is far from necessary to "limit" federal power here. The statute is by its own terms limited. The concern, as with ACA, is that it is not limited enough and this is translated into "no limits," mixed with an opposition to the overall merits of the policy as a whole. It is far from clear that even as a matter of discretion that this prosecution was misguided.

There are likely specific applications of treaties that are problematic, including those that deal with matters that should be left to the states. Even there, unless some individual right or other express constitutional demand is involved, this should likely be a political question except perhaps in a crystal clear case. To quote Holland,* "a national interest of very nearly the first magnitude is involved" (chemical weapons) here. Migratory birds might be more national than misuse of chemicals, but necessary and proper here but "national action" is significantly essential here all the same. The facts of the case underline that leaving it to local action here was and is a dubious proposition. If nothing else, the legitimate discretion is there and Bond should therefore lose.

Wider specters however complicate things.

---

* Justice Holmes had to deal with a more restrictive era when it came to federal power, but still obtained a 7-2 vote. He noted:

The treaty in question does not contravene any prohibitory words to be found in the Constitution. The only question is whether [p434] it is forbidden by some invisible radiation from the general terms of the Tenth Amendment.

So is the case here -- the "radiation" is required when the amendment involved leaves those powers not delegated to the U.S. (e.g., the Treaty Power, power to regulate the rules of nations and anything necessary and proper for the same)  to the states or people minus those not otherwise prohibited to the same.  Is there some "activity" rule for treaties?

My Positions [No Labels!]

Cheers for Democrats, voting for judges is stupid and along with the judges, few voters will know about most of the ballot measures, except perhaps the casino gambling one. The voting guide received at least talked about the measures; even if I think judges should be voted on (maybe for housing judges etc.?), the lack of info on them makes that a joke.

Election Day

The vote to end the "Bloomberg Era" is today along with some other local offices, including judges (and a new line -- War Veterans Party?) no one heard about. A few ballot measures -- obscure property matters the people have to vote on, allowing casino gambling, increase retirement age of some state judges to 80 and expansion of disability benefits for vets.

"The Appearance of Impropriety and Partiality"

More on a dubious stay on a local stop/frisk ruling.

Pan Am

This was a short lived series concerning four Pan Am stewardesses and a pilot/co-pilot in 1963. Lots of subplots and world travel. Mixed results though as a whole it was an enjoyable way to end your weekend. The DVD puts one episode in its right place (though another seems out of place) and adds some interviews by actual stewardesses of that era.

MNF

Rodgers hurt early, so it is a battle of back-ups. Packers "D" looking pretty bad at the moment, Bears going ahead 24-20 and now driving after going for it deep in their own territory at 4th and inches (Packers had a shot at stopping them). Pretty pathetic ending.

In the courts ...

Given the likely result of the mayoral race tomorrow, the stay on an appeal of a now infamous (for some) stop/frisk ruling is probably most important for other judges. The USSC punted after the Oklahoma Supreme Court deemed a state law on abortion drugs an undue burden. Meanwhile, the 5th Cir. went out of it's way to stay a limited victory against the new Texas anti-abortion law. The USSC also released a slap-down per curiam.

Quickie Book Reviews

June Dwyer has an interesting little book discussing Jane Austen's novels -- not comprehensive, but good read. Garrett Epps' American Epic book on the Constitution was an interesting small volume approach but had one too many errors. The "Very Short Intro" on Islam was too boring. Falling Into the Fire was an interesting look at psychiatry in action.

Week 9

It's time to see what baseball teams do in the off-season, including the Mets -- the time is now with two big contracts off the books. Jets show something by beating the Saints, if with some stressful moments. Tampa still winless, blowing a 21-0 lead. Redskins help Jets by beating a final playoff slot rival. Bengals look bad, Viks let Dallas off hook.