American Elephants


Monday: Three More Big Decisions From The Supreme Court by The Elephant's Child

Supreme-Court-Justices-2

After finding something or other somewhere in the Constitution that recognized a national right to same-sex marriage and rewriting the Affordable Care Act to fix the actual language that Congress wrote into the law, there are still three more big decisions, which we will hear on Monday.

1. Execution Methods

Glossip v. Gross

At issue is whether the sedative midazolam presents an unconstitutional risk of severe pain in executions of condemned criminals. Three men on Oklahoma’s death row claim that midazolam, the anesthetic the state plans to administer before introducing paralytic and heart-stopping drugs to their bloodstreams, is unreliable, exposing them to an unconstitutional risk of severe pain as they are put to death.

2. Power-Plant Emissions

Utility Air Regulatory Group v. EPA et.al.

Issue: Whether the EPA unreasonably disregarded costs when it decided to regulate power plant emissions of mercury and other air toxins. The regulations would cost $9.6 billion annually, according to EPA estimates. But the agency said it was appropriate to consider only public health risks—not industry costs—when it decided to regulate coal- and oil-fired generation plants.

3. Congressional Redistricting

Arizona State Legislature v. Arizona Independent Redistricting Commission

Issue: Whether a state may transfer redistricting authority from the legislature to a nonpartisan independent commission. Arizona voters in 2000 passed a ballot initiative that shifted responsibility for drawing congressional districts from the state legislature to an independent redistricting commission made up of two Democrats, two Republicans and an independent.



Only in America. Progressive Talking Points Trump Common Decency Every Time by The Elephant's Child
June 20, 2015, 10:27 pm
Filed under: Politics, Progressivism, The Constitution | Tags: , ,

“Once again, innocent people were killed in part because someone who wanted to inflict harm had no trouble getting their hands on a gun. … We as a country will have to reckon with the fact that this type of mass violence does not happen in other advanced countries.” Barack Obama

What I find most interesting is the extent to which the Left depends on their customary talking points. “Only in America are innocent people killed with guns. We have to ban all guns.” America, you see, is a bad country to the Left: slavery, inequality, poverty, the Indians, corporations,inequality, greed, cruelty, war, torture, discrimination, inequality, diversity, and of late, microaggression and triggering, and, of course, offensive speech of all kinds. They are Progressives, which implies that they are progressing towards something — which seems to be an egalitarian utopia where they are in charge.

But President Obama, speaking angrily about the massacre at the Emmanuel African Methodist Episcopal Church in Charleston, knew perfectly well that this type of mass violence does indeed happen in other advanced countries. When Behrigh Anders Brevic killed 75 people in Norway in 2011. Mr. Obama went to the Norwegian embassy to express his sympathy and the sympathy of the nation. When two gunmen entered the office of the satirical magazine Charlie Hebdo and murdered 11 people and injured 11 more, killed a police officer, and another killer murdered five more in a kosher market and wounded eleven, the heads of state of most advanced countries went to Paris and marched in solidarity with the French. Obama skipped that one, perhaps because he didn’t want to be seen condemning Muslims when he was trying to make a deal with Iran.

The shootings in other advanced countries in recent years:*

Behring Anders Breivik killed 75, 2011, Norway
Mohammed Merah killed 7, 2012, France
Genildo Ferreira de França killed 14, 1997, Brazil
Michael Robert Ryan killed 16, 1987, UK
Eric Borel killed 15, 1995, France
Friedrich Leibacher killed 14, 2001,Switzerland
Christian Dornier killed 14, 1989, France
Ljubiša Bogdanović killed 13, 2013, Serbia
Derrick Bird killed 12, 2010, UK
Robert Steinhäuser killed 16, 2002, Germany
Tim Kretschmer killled 15, 2009, Germany
Wellington Menezes de Oliveira killed 12, 2011, Brazil
Bai Ningyang killed 12, 2006, China
Juhani Matti Saari killed 10, 2008, Finland
Huanming Wu killed 9, 2010, China
Ahmed Ibragimov killed 41, 1999, Russia
Ami Popper killed 7, 1990, Israel
Antoní Blažka killed 6, 2013, Czech Republic

Looking back a little further, there is the Holodomor in 1930s Ukraine, the Rape of Nanking, the Holocaust, the Bataan Death March, to mention only a few of the larger unpleasantnesses in advanced countries. Why would the presidential mind turn directly to Leftist political talking points? Because advocating gun control demonstrates empathy, which leaves the Right as the party that does not care — a popular accusation of the Left, but suggesting that bad things only happen in America, because Americans don’t follow the prescriptions of the Left, is pretty common too.

Progressive  progress toward greater equality leaves Republicans or conservatives defending inequality. Republicans don’t believe that you can make people equal, except in the Constitutional sense of equality of opportunity and equality before the law. Or to put it differently, Republicans recognize imperfect human nature. Some of us are smart, some are not, some are beautiful, some are not. Some are talented, some are not. Some are crooks, some are not. Progressives seem to believe that imperfect human nature can be fixed, with wise regulations and management by themselves. As is often said, inside every Leftist is a tyrant trying to get out. They want to control, to regulate, because smart people like them, who went to the right schools and think the right thoughts can better organize America to be more — progressive.

*list from Wayne Laugesen, Colorado Springs Gazette



Is The Constitution Dead? Did It Die While We Weren’t Paying Attention? by The Elephant's Child

Constitution

This lovely paragraph is in Myron Magnet’s review of Philip Hamburger’s Is Administrative Law Unlawful? in City Journal, the magazine of the Manhattan Institute:

The world-historical accomplishment of the American Revolution, and of the Constitution that came out of it, Hamburger notes, was that they turned upside-down the traditional governmental model of “elite power and popular subservience.” Americans “made themselves masters and made their lawmakers their servants” through a Constitution that they themselves had made. They observed laws that had legitimacy because they themselves had consented to them, through representatives whom they themselves had chosen. And “they made clear that not only their executives but even their legislatures were without absolute power.” Citizens claimed for themselves the liberty to do anything that the laws didn’t expressly forbid, and that freedom richly nourished talent, invention, experimentation, specialization—all the human qualities that are the fuel of progress and modernity.

It struck me that much of what drives the Left is contained in that paragraph. What the Left aims for is elite power and popular subservience. Obama, today, in response to a Republican sweep of the 2014 election, has decided, instead of making an effort to work with Congress in a bipartisan manner, to conduct foreign policy and legislate all on his lonesome. Politicians, by their very nature have a healthy dose of self-esteem, and they choose their rhetoric carefully to place their accomplishments or lack of accomplishments in the best possible light. That’s just natural. But insisting that because you are President of the United States you can do whatever you want to do by executive order, ignoring the tripartite nature of our Constitutional government, is just wrong.

The Constitution lodges all legislative power in Congress, which therefore cannot delegate its lawmaking function. It is, Hamburger says, “forbidden for Congress to pass a law creating an executive branch agency that writes rules legally binding on citizens—for example, to set up an agency charged with making a clean environment and then to let it make rules with the force of law to accomplish that end as it sees fit. The power of the legislative’ as the Founding Fathers’ tutelary political philosopher, John Locke, wrote, is   ‘only to make laws and not to make legislators.’ And if Congress can’t delegate the legislative power that the Constitution gives it, it certainly cannot delegate power that the Constitution doesn’t give it—namely, the power to hand out selective exemption from its laws, which is what agencies do when they grant waivers.”

James Madison, architect of the Constitution saw the separation of powers as an essential bulwark of American liberty. Administrative agencies, however, make rules, carry them out, adjudge and punish infractions of them, and wrap up legislative, executive and judicial powers in one noxious unconstitutional mess. Judicial power cannot be delegated as legislative power, the Constitution puts all of it in the judicial branch. Unlike real judges, administrative judges carry out the policy of their agency, as set and overseen by their department chief or the relevant cabinet secretary who in turn oversees him. This is not a court, and not a law, and not legal. Yet they can and do order  parties to appear before it, and extort millions of dollars in settlements, force companies to allow inspectors to enter their premises without warrants, and impose real criminal penalties. It can even kill a whole industry, as Obama’s EPA is attempting to do to the coal industry and the coal-fired power industry because the President mistakenly believes the carbon dioxide they emit is the cause of global warming.

Elites, particularly Leftist elites, do not like the Constitution which restrains their grasp for power. Many have accused Barack Obama of wanting to be a king. He laughs it off, and tries to pretend that his executive orders and executive notes and memorandums and signing statements are all perfectly constitutional, and adds, of course, that Bush did it.

Constitutional government is by its nature slow, designed to force new laws to be discussed and argued about, which will incline them to be better written and better law. But Congress, at some point got lazy, and felt it would speed things up if they just handed the administrative function in its entirety off to the assorted agencies of the government.

Thanks to Obama, we have a prime example of the failure of that whole endeavor in the Environmental Protection Agency. Good intentions come up against the nature of bureaucracy which is to grow and elaborate their mission and enhance their power. The Clean Water Act has long since accomplished it’s intent, and the EPA is vigilantly attempting to extend its regulating power to the trickles that flow into the ditches that flow into the creeks that flow into the streams that eventually flow into the “navigable waters,” the big rivers, that were originally given into their oversight. That’s pure power grab.

Congress must take back the legislative power assigned to it, agencies must shrink drastically in size, authority, and reach. They are not allowed to make law, administer law, investigate and judge law and assign penalties. Things have gotten so far out of whack that most, if not all, agencies have their own swat teams.

Part of the problem is that judges don’t know or understand the intricacies of the underlying facts of that which the agencies are attempting to regulate. Congress told the EPA that the navigable waters of the United States should be reasonably clean. The courts don’t necessarily understand where the dividing line for “enough” should fall.

Even while adhering to Supreme Court precedents about administrative power, they “remain free—indeed, [the courts] are bound by duty—to expound the unlawfulness of such power.” And at some point, Hamburger expects, the Supreme Court will have to man up and frankly state that what the Constitution says is the supreme law of the land.

And the people are going to have to let their representatives know that we care about the Constitution and our freedom, and are opposed to the administrative state.



And So It Goes: by The Elephant's Child
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Obama’s “Good Deal” is a Self-Serving Fantasy by The Elephant's Child

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Reported: Obama ordered Secretary Kerry to continue talking in Lausanne even though deadline had passed.

LAUSANNE, Switzerland — (Washington Post) “Negotiators from Iran and major world powers reached agreement Thursday on a framework for a final agreement to curb Tehran’s nuclear program in exchange for relief from international sanctions an accord that President Obama hailed as a “good deal” that would make the world a safer place.”

Obama appeared in the Rose Garden to say that the U.S. and its partners “reached a historic understanding with Iran which if fully implemented, will prevent it from obtaining a nuclear weapon.”

Poor Obama, He is so desperate for “a deal” that he has turned over everything the Iranians could possibly want, in return for some vague promises that will be meaningless. Close observers have said that he expects this ‘accomplishment’ to equal Nixon’s opening up China. Instead he may have signed America’s death warrant, and Israel’s.

America is an open society, we hang most of our secrets out on a clothesline for all the world to see — and hackers get a good percentage of the rest. Hardening off our electric grid? EMP attacks? Just yesterday some Russian expert suggested that the best way to end America would be to drop a nuclear bomb on Yellowstone. Not defeat — destroy. When is the last time that The United States of America ever suggested destroying another country?

Obama’s speech in the Rose Garden was so full of straw men that it was embarrassing. He even claimed the authority of a push poll yesterday that asked such a mushy-soft question that both Hitler and Mother Teresa would have signed on. UN Officials have said that Iran is already blocking their efforts to track what is going on in their nuclear program. We not only don’t know how advanced their program is, we don’t know for sure how many facilities they have.

Thomas Sowell wrote today:

The Soviet Union was never suicidal, so the fact that we could annihilate their cities if they attacked ours was a sufficient deterrent to a nuclear attack from them. But will that deter fanatics with an apocalyptic vision? Should we bet the lives of millions of Americans on our ability to deter nuclear war with Iran?

It is now nearly 70 years since nuclear bombs were used in war. Long periods of safety in that respect have apparently led many to feel as if the danger is not real. But the dangers are even greater now and the nuclear bombs more devastating.

Clearing the way for Iran to get nuclear bombs may — probably will — be the most catastrophic decision in human history. And it can certainly change human history, irrevocably, for the worse.

The Iraqi Prime Minister said “We will continue enriching. We won’t close facilities and all sanctions will be terminated.” Obama seems to believe that they are just developing nuclear energy for peaceful domestic purposes. If so, why the intercontinental ballistic missiles? And why, when they are a major oil-producing country, do they need nuclear energy? We don’t even know how close or far their development of a bomb is — Obama is claiming 10 years, too far away to be blamed on him, but other sources say as little as 45 days.

We had a powerful restraint in place. Iran supposedly requires a $130 per barrel price for oil to break even, and the price has dropped below $50. Obama compared himself to Richard Nixon and to John Kennedy negotiating nuclear deals with the Soviet Union, but both of them submitted their agreements to Congress for approval.



Congress Is Supposed to Meddle in the Iran Talks. That’s Their Job. by The Elephant's Child

carter-3
Put aside the overheated spat about the wisdom of inviting Israeli Prime Minister Benjamin Netanyahu to address a joint session of Congress this week. The deeper constitutional issue involves the insistence by President Barack Obama that the House and Senate have no business floating sanctions bills that might upset the administration’s negotiations over Iran’s nuclear program. The truth is that there’s nothing remotely unusual going on. Congress has pressured presidents to change their approaches to foreign policy for as long as the country has existed. This sort of interplay among the branches is exactly what the Framers expected.

This is Stephen L Carter, writing for Bloomberg last Thursday. Do read the whole thing. It’s particularly nice to see a professor of law, once again, clarifying the relationship between the executive office and Congress. The people often complain that Congress just seems to fight. Why can’t they just get along, and get stuff done?

Nancy Pelosi supposedly fumed about Congress’s “insult” to the president by inviting Prime Minister Netanyahu to address Congress. Congress does not have to ask the permission of the president to invite anyone they want to speak to them, and Ms. Pelosi knows that perfectly well.

Congress has not only the right to disagree with the President, but it is their duty when they believe he’s off on the wrong track. The founders intended for Congress to debate and fight and expose all sides of the questions before them. Laws are not to be made by presidents, that’s Congress’s job, and laws are not to be made in haste but after the problems have been hashed out to the extent possible.

Professor Carter cites numerous recent examples that make it clear that struggles between the legislative and executive branches have occurred “over how to deal with everything from attacks on U.S. ships by the Barbary states to Russian expansionism in North America.”

This unambiguous history makes it all the more remarkable that members of the Obama administration continue to insist that there is something constitutionally troubling about, for example, the proposed Iran Nuclear Review Act of 2015, which would require the president to submit for congressional approval whatever agreement he reaches with Tehran. “I don’t think there ought to be a formal approval process,” Secretary of State John Kerry said in congressional testimony last month. “I believe this falls squarely within the executive power of the president of the United States in the execution of American foreign policy.”…

We can argue long and hard over the proper contours of the final deal with Tehran. But it’s wrong to suggest that Congress is misbehaving when it insists on protecting its prerogatives. Battles between the executive and legislative branches over foreign policy are as old as the republic. If the outcome of the current fight is a restriction on the freedom of this or a future president to go his own way, that’s a feature, not a bug.

Stephen L.Carter is a professor of law at Yale University, who teaches courses on contracts, professional responsibility, ethics in literature, intellectual property, and the law and ethics of war, and writes good thrillers as well.



The EPA Gets Slapped Down By the Federal Court Once Again by The Elephant's Child

McCarthy testifies before a Senate Environment and Public Works Committee hearing on her nomination to be administrator of the Environmental Protection AgencyFederal Judge Royce C. Lamberth  today warned the EPA not to discriminate against conservative groups in how it responds to open records requests. He said the agency may have lied to the court and showed “apathy and carelessness” in carrying out the law.

He said he could not prove that officials intentionally destroyed documents, but he described as an “absurdity” the way the EPA handled a Freedom of Information Act (FOIA) request from Landmark Legal Foundation and the court case stemming from it—including late last week admitting that it misled the court about how it went about  “searching for documents.”

In a scorching 25-page opinion, the judge accused the agency of insulting him by first claiming it had conducted a full search for records, then years later retracted that claim in a footnote to another document without giving any explanation for how it erred.

“The recurrent instances of disregard that EPA employees display for FOIA obligations should not be tolerated by the agency,” the judge said. “This court would implore the executive branch to take greater responsibility in ensuring that all EPA FOIA requests — regardless of the political affiliation of the requester — are treated with equal respect and conscientiousness.”

This particular ruling can also be seen as a rebuke to President Obama who vowed to run the “most transparent administration in history” but has received constant challenges over how that vow has been carried out. Judge Lamberth made a point of the EPA delay of follow through on Landmark’s request until after the 2012 elections, and said explanations by EPA officials for why they failed to live up to the law “defied reason.”

Mark Levin, Landmark’s president, said it is up to the president to decide how to respond, but people should be fired. Nena Shaw and Eric Wachter, Judge Lamberth said, either lied to the court or showed utter indifference to the law.

Is it proper to send roses to a federal court? Probably not, but this arrogant agency certainly deserves a legal slap-down.




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