Libya and the Law

Watching the President last night, I was struck (repeatedly) by his effort to convince Americans that committing acts of war against Libya is a good idea because it is (1) meant to avoid a massacre and protect civilians, and (2) temporary, to be handed off to an international “coalition.”

One question, though, remains unanswered:  was it legal?

Article I, Section 8 of the U.S. Constitution grants Congress the power to declare war.  Congress has neither done so nor apparently been asked to do so.  Consequently, no consitutional authority has been conferred on the President to wage war against Libya.

Apart from the Constitution, is there statutory authority for this war?  The closest we get is the War Powers Act of 1973, but that act limits the circumstances under which the President can unilaterally commit our military to combat:

The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

There are those who contend the War Powers Act is unconstitutional, but we needn’t discuss that here, since the President clearly could not have acted in accordance with that law.  There is no declaration of war, no statutory authorization, and no attack on the United States.
In 2007, when there was speculation that the U.S. might launch a pre-emptive strike on Iran, then-Senator Biden warned that such action would be unconsitutional and grounds for impeachment:
Where is Biden now?  On vacation.
You might agree with the President that waging war on Libya is a good idea, or you might think it’s not such a wise move.  But, good idea or bad idea, it is clearly illegal.

Decision in Snyder v Phelps Reaffirms Important First Amendment Principles

The Wizard of Laws discusses today’s U.S. Supreme Court decision in Snyder v Phelps, the case involving the infamous Westboro Baptist Church and whether their lunatic protesting is protected by the First Amendment.  Read The Wiz’s take on it here.

As Usual, It’s Elizabeth Weaver’s Fault

February 9, 2011 Leave a comment

At my first law firm, a few of us informally agreed that any brief we wrote would have some Latin in it — arguendo, inter alia, ab initio, whatever.  So, I get inordinately excited when I see lawsuits brought using the Latin names for the action, such as the quo warranto action recently filed by our new Attorney General over the appointment of Hugh Clarke to fill a vacancy in the 54-A District Court in Lansing.

Quo warranto, literally meaning “by what warrant,” is the name of a legal proceeding during which an individual’s right to hold an office or governmental privilege is challenged. 

In November 2010, Amy Krause was re-elected to the Lansing District Court bench.  After that, however, she was appointed by then-Governor Granholm to fill a vacancy in the Court of Appeals.  This left a district court vacancy, which Ms. Granholm filled on December 20 by appointing Hugh Clarke.

Here’s the problem:  The Michigan Constitution and state law say that a judge’s term ends at 12 noon on the 1st day of January.  So, since Krause was appointed to the Court of Appeals in November of 2010, her term on the District Court bench still had a little over a month to go, until noon on January 1, 2011.  The term she was elected for in November did not begin until noon on January 1, 2011.  So, when Granholm appointed Clarke to fill Krause’s seat on the bench, he could only fill her unexpired term ending at noon on January 1, because her new term did not begin until then, and Granholm had no authority to appoint a new judge to fill a vacancy beginning on January 1 since, as we all know, she was no longer the governor.

The bottom line is that Clarke was legally a judge for less than 12 days, from his appointment on December 20 until noon on January 1.  This also calls into question the legality of any ruling he has made since January 1.

There are now a pair of lawyers representing Clarke, who of course take the view that he’s good to go.  From the Lansing State Journal:

In their response, Clarke’s attorneys say that state law has an appointee to the District Court bench fill the seat until the “next general November election, at which time a successor is elected and qualified.”

[Former Michigan Supreme Court Justice and Cooley Law School impresario Thomas]Brennan also argues that the Michigan Supreme Court does not have the power to remove a judge without a recommendation from the Judicial Tenure Commission. Further, such removals can occur only in a specific set of circumstances, none of which apply to the dispute over Clarke.

The first argument ignores the question of when a vacancy occurs, and the second ignores the existence of that time-honored claim, quo warranto.

Clarke and his attorneys will also have a hard time escaping the Supreme Court’s 1983 decision in Attorney General v Riley, 417 Mich 119 (1983).  There, Blair Moody was serving on the court and was elected to a new eight-year term in November 1982.  Moody died on November 26, 1982, and Governor Milliken appointed Dorothy Comstock Riley on December 9 to fill the vacancy.  The Eternal General, Frank Kelley, filed a quo warranto action challenging Riley’s right to hold office after 12 noon on January 1, 1983.  The Michigan Supreme Court agreed, finding that the “vacancy” being filled was in the term ending January 1, 1983, and that Moody’s election and subsequent death created another vacancy in the term beginning January 1, 1983, to be filled by the governor in office on that date.

So, applying Riley to the present case yields this result:  Krause’s appointment to the Court of Appeals created a vacancy in the District Court that lasted until the end of her term at noon on January 1, 2011.  At that time, a new vacancy arose because Krause was serving on another court and therefore not qualified to serve the District Court term to which she had been previously elected.  The vacancy beginning January 1 has to be filled by Governor Snyder, since Granholm had no authority to do so.

Why is this Elizabeth Weaver’s fault, you ask?  Simple — she resigned from the Supreme Court as part of an unseemly deal to get Alton Davis appointed and tagged as an incumbent for the November 2010 Supreme Court election.  To take the appointment, Davis had to resign his seat on the Court of Appeals, thus creating a vacancy filled by the Krause appointment, which in turn created the District Court vacancy and produced the Clarke appointment causing all this ruckus.

Is this really a Weaver issue?  Res ipsa loquitur (translation:  the thing speaks for itself).

Understanding Arizona

I have often suggested in jest that our law firm motto should be, “Can’t We All Just Not Get Along?”  This has never caught on.

When it comes to society generally, however, getting along would be a good thing, but it requires common ground.  And the first place to start would be a common understanding of the facts of a situation before people begin staking out wildly unhinged positions.

I started thinking about this more lately when I saw that several of my Facebook friends had joined a group called “1,000,000 Against the Racist Anti-Immigrant Law SB 1070 in Arizona!”  Now, these friends are gentle souls, so I wondered about this law, particularly since it has gotten so much bad press lately.  

Well, it turns out this law really should not be controversial at all, since it closely tracks decades-old U.S. Supreme Court precedent.  And to call it racist is simply wrong, since the law itself contains protections against just that possibility.

Here ‘s the operative provision of the law, boiled down to its essence:

For any lawful contact made by a law enforcement official . . . where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person, except if the determination may hinder or obstruct an investigation. Any person who is arrested shall have the person’s immigration status determined before the person is released. . . A law enforcement official or agency of this state or a county, city, town or other political subdivision of this state may not solely consider race, color or national origin in implementing the requirements of this subsection except to the extent permitted by the United States or Arizona constitution.  (For the full text of the law, click here).

So, if a police officer comes into contact with someone and has a reasonable suspicion that the person might be in the country illegally (or if the person is arrested), he can investigate the person’s immigration status.  The law specifically prohibits profiling based solely on race, color, or national origin.

So, exactly how is this racist?

The “reasonable suspicion” closely tracks longstanding U.S. Supreme Court jurisprudence, beginning most famously with Terry v. Ohio, a 1968 Supreme Court decision.   In Terry, Cleveland Detective Martin McFadden became suspicious after observing John Terry and two others, who appeared to be casing a location for a robbery.  McFadden stopped to investigate and eventually frisked the three men for weapons, finding one on Terry and one other.  Terry was later convicted of carrying a concealed weapon.

In finding the detective’s conduct acceptable under the U.S. Constitution’s Fourth Amendment, the Supreme Court said:

And in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.  The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances.  And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate?  *  *  * And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience. 

Arizona has attempted to enshrine these principles in its new law, requiring police officers to have “reasonable suspicion” that a person may be in the country illegally, and prohibiting the officer from acting solely on the basis of race, color, or national origin.

When people suggest that this law is racist or that Arizona police will be stopping people randomly to see their “papers,” it is clear they have not read the law, don’t understand it, or simply refuse to understand. 

Everyone is entitled to his own opinion, but no one has a right to be wrong on the facts.  If you want to get along, first educate yourself instead of relying on shorthand descriptions from uneducated, agenda-driven radicals.

Liberals and the Law, or Why Jimmy Carter’s Judges are Killing Us!

April 16, 2010 15 comments

What in the world is going on in our nation’s courtrooms? Have our judges lost their minds?

I am not one to fly off the handle, but I see the pattern, and it’s not good. Here are a few examples of the current craziness:

Voter-mania. In 2008, ACORN, in concert with the Ohio Secretary of State (a Democrat) and a federal judge (appointed by Clinton), effected a settlement by which the homeless were permitted to use park benches(!) as their addresses for voter registration purposes. ACORN is being investigated or has been charged with voter fraud in at least 14 states. The U.S. Department of Justice has now ordered that states are not permitted to verify voter citizenship. 

This year, the U.S. Court of Appeals for the Ninth Circuit, a well-known asylum, ruled that a Washington state law automatically denying felons the right to vote was racially discriminatory and therefore violated section 2 of the Voting Rights Act.  This conclusion is “due to racial discrimination in the state’s criminal justice system,” the theory being that minorities are disproportionately charged and sentenced, so the felon-can’t-vote law hits them harder than it does white people.   Note that all felons are treated the same — they can’t vote — so this really has nothing to do with the felon-can’t-vote law and everything to do with the notion that the state itself is discriminatory.  The judges in the majority of this 2-1 decision?  Appointed by Jimmy Carter.

Here’s the danger — once you decide that the criminal justice system is inherently discriminatory, then you can’t use criminal background checks for any purpose because the effect of the check will fall disproportionately on minority groups.  Thus, we could not use criminal background checks to screen applicants for jobs in law enforcement, the schools, or anywhere else.  Nice, huh?

Perhaps you think I am exaggerating.  I assure you, GLBLITL does not exaggerate.  As if on cue to prove my point, the Center for Constitutional Rights (CCR) and other organizations filed a federal lawsuit in the Southern District of New York on April 13 against the Census Bureau for race and national origin discrimination in the hiring of temporary workers.  In Johnson et al. v. Locke, CCR [an organization whose name is the antithesis of its purpose] says that the U.S. Census Bureau’s practice of running job applicants’ names through the FBI criminal records database disproportionately excludes applicants of color and deters them from completing the application process. 

And so it goes.

Stop that Praying!  The most recent example of judicial mischief is the ludicrous decision by Judge Barbara Crabb of the Western District of Wisconsin, finding the National Day of Prayer unconstitutional.  Appointed by — you guessed it — Jimmy Carter, Crabb said in her opinion: 

A determination that the government may not endorse a religious message is not a determination that the message itself is harmful, unimportant or undeserving of dissemination.  Rather, it is part of the effort to carry out the Founders’ plan of preserving religious liberty to the fullest extent possible in a pluralistic society. . . The same law that prohibits the government from declaring a National Day of Prayer also prohibits it from declaring a National Day of Blasphemy. (Citation and internal quotes omitted).

Oh, brother.  Perhaps Judge Crabb cannot conceive of the fact that a “National Day of Blasphemy” would actually dictate content, while a National Day of Prayer does no such thing.  There is no coercion, and the government is not “endorsing a religious message.” 

The First Amendment states that “Congress shall make no law respecting an establishment of religion[.]”  The purpose was to prevent the federal government from imposing a single, national religion on the people.  The National Day of Prayer, adopted in 1952, does no such thing.  Suddenly it’s unconstitutional?

What is it with these judges that they despise our most cherished institutions?  Religion, marriage, the family, the free market, and freedom itself are under an unrelenting attack.  Don’t believe that?  Wait for net neutrality, cap-and-trade, and the full effect of the health care bill.  Already, 50 percent of our citizens pay next to nothing in income taxes (3 percent of the total), and yet they are the biggest consumers of government services and handouts.  The top one percent earnings-wise pay 40 percent of the taxes, and the top five percent of earners — those making over $145,283 — pay 60 percent of the all the federal income tax collected in this country.  

Apparently, the liberals can’t glom onto any actuaries, because one would tell them this path is completely unsustainable and headed toward a major breakdown.  A National Day of Prayer?  We need it now more than ever.

America was founded on a faith in Providence, in God’s mercy, and in the notion that all men are endowed with certain unalienable rights, among them life, liberty, and the pursuit of happiness.  These rights are being slowly but surely strangled and, if we do not reverse course soon, our great Nation will be unrecognizable and lost.

Batting .500 So Far

February 23, 2010 1 comment

Ty Cobb, the greatest hitter ever to play major league baseball, had a career batting average of .367.  Ted Williams, considered by many to possess the greatest combination of power and average, hit .344 over his brilliant career.

Your humble servant is currently batting .500 with his Michigan Supreme Court decisions.  Hello, Hall of Fame!

I previously posted here on the first eight cases argued before the new Michigan Supreme Court in its first full term.  I predicted the outcomes of these cases based on purely political analysis, without regard to who was right or should prevail.  The court has now decided two of these cases, and I got one right and one wrong.

The first case, First National Bank of Chicago v Department of Treasury, addressed the plaintiff’s challenge to the adequacy of a foreclosure notice.  Here’s what I wrote:

A close one.  Liberals hate banks, but they also hate foreclosures, and they wouldn’t mind throwing up a few more foreclosure roadblocks.  This case helps them do it, and they can actually follow the law by ruling in the plaintiff’s favor.  The plaintiff wins.

Oops.   The plaintiff lost.  The court found that the bank had received adequate notice, so on that basis, the foreclosure was done properly.  Still, I did say it was a close one!  My mistake was in underestimating the anti-bank sentiment.

In contrast, I nailed Davis v Forest River, which involved a consumer’s complaint against an RV manufacturer.  The plaintiff sought to rescind the sale of the vehicle, even though he did not have a direct relationship with the manufacturer (i.e., he was not in privity with the defendant).  The trial court agreed with the plaintiff, but the Court of Appeals reversed.  Here’s what I wrote:

An individual against a big corporation plus the chance to extend consumer protections into an area where it never existed?  That’s too much for liberals to resist — the plaintiff wins again.

Bingo!  The Supreme Court reversed the Court of Appeals, stating that “special circumstances warrant a departure from the general measure of damages.”  The plaintiff won, and your correspondent goes to .500 for the season.

I’ll update the record as we go along.  So far:

                               W          L

GoodLawBadLaw    1           1

Getting it Right

February 16, 2010 Leave a comment

Want to read something positive about a court making a good decision? 

Check it out here.

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