Following the admission that the CIA hacked Senate computers and lied to Congress, President Obama today affirmed that it did indeed torture people. This admission (while belated) is an important recognition by the United States of what is obvious from a legal standpoint. However, that also means that CIA officials violated both federal and international law. The question is why Obama began his first term by promising CIA employees that they would not be tried for what he now describes as “tortur[ing] some folks.”
Archive for the ‘Courts’ Category
Below is my column this morning in USA Today on the rivaling health care rulings in Washington, D.C. and Virginia. I have been struck on this and other blogs with how quickly people criticize the opinions by attacking the motives and backgrounds of the respective judges. It is a signature of our times that we no longer debate the issue and try instead to discredit those with whom we disagree. We have learned to hate like the Queen Mother counseled in Shakespeare’s Richard III: to “Think that thy babes were sweeter than they were; And he that slew them fouler than he is.” The fact is that the ACA was a deeply flawed piece of legislation that was passed with insufficient review and editing. It was pushed through on a muscle vote when it was in subpar condition. There have been hundreds of serious drafting errors found in the law. Courts have been struggling with those errors as has the White House. Yet, such good faith questions have no place in today’s politics where every issue must be personified and treated as some low-grade political stunt despite long opinions detailing rationales in the two courts. To dismiss these decisions as the result of judicial hacks ignores those extensive problems in the law. This piece looks at that response and how we have lost the ability to engage in civil or substantive discussion on such issues. From a legisprudence standpoint, the two opinions are classic difference in how courts approach statutory interpretation. I would not call either opinion as strictly “textualist” or “intentionalist” but they certainly reflect these different views of the role of the courts and agencies in the interpretation of legislative text. While I agree with the merits of the change ordered by the Administration, I am highly uncomfortable with treating language in a statute as a “typo” or some oversight. Indeed, as we recently discussed, even key players who are now calling the D.C. Circuit interpretation “nutty” previously appeared to subscribe to that interpretation. For that reason, I favor the D.C. Circuit opinion out of concern over limiting the role of the courts and reinforcing the separation of powers. Here is the column.
The United States Court of Appeals for the Eleventh Circuit has handed down a ruling that vacated an injunction of the Florida law barring physicians from discussing guns in their homes when it is not related to medical care. The lower court found the law violative of the first amendment, but the Eleventh Circuit found that it does not violate free speech. I have always found this law highly troubling on both free speech grounds as well as policy grounds. Just as I have long objected to legislatures interfering with teachers, I have the same reservations about their micromanaging doctors. The law is commonly referred to as “Docs for Glocks.”
Submitted by Darren Smith, Weekend Contributor
We previously discussed the case of California State Senator Leland Yee accused of several corruption and weapons charges, including an accusation of conspiracy to import weaponry from terrorists in the Far East. The case stems from Leland’s alleged association with a San Francisco based criminal organization. Previous articles may be read regarding the original accusations HERE, and his suspension from the California Senate HERE.
A new indictment was unsealed against Leland alleging Racketeering and Conspiracy To Obtain Property Under The Color Of Official Right.
Yesterday, we discussed a controversy involving Jonathan Gruber, a Massachusetts Institute of Technology economist who played a major role the ACA, or “Obamacare.” He told MSNBC recently that “It is unambiguous this is a typo. Literally every single person involved in the crafting of this law has said that it`s a typo, that they had no intention of excluding the federal states.” However, a libertarian group uncovered a video showing Gruber saying quite clearly after the passage of the law that this provision was a quid pro quo device: state exchanges for tax credits. Conservative sites have lit up over the video below showing Gruber essentially describing the very tradeoff identified in Halbig. He told MSNBC recently that “It is unambiguous this is a typo. Literally every single person involved in the crafting of this law has said that it`s a typo, that they had no intention of excluding the federal states.” However, a libertarian group just uncovered a video showing Gruber saying quite clearly after the passage of the law that this provision was a quid pro quo device: state exchanges for tax credits. Conservative sites have lit up over the video below showing Gruber essentially describing the very tradeoff identified in Halbig. Indeed, Gruber later signed on amicus briefs supporting the White House interpretation and even joined the counter spin from the White House and denouncing that very interpretation as “nutty.” Gruber responded to critics showing the video below by that “I was speaking off-the-cuff. It was just a mistake.” However, now another response has been raised in which Gruber gave the same interpretation during this presentation. In my view, the point is again to ask why both sides have to denounce each other as nuts or extremists when there are good-faith arguments can be made on both sides.
By any measure, former Wayne County Circuit Judge Wade McCree was a disgrace to the bench. The worse of his violations was his affair with the wife of a man in a child-support case before his court. However, while calling McCree’s conduct “often reprehensible,” a three-judge panel ruled that his affair with a litigant before him was still covered by judicial immunity when the former husband Robert King sued for damages in a civil rights case. The United States for the Sixth Circuit barred such recovery as a matter of judicial immunity in what will likely be a highly controversial decision.
Below is my column today in the Chicago Tribune on the rivaling rulings in the D.C. Circuit and the Fourth Circuit over a critical provision under the Patient Protection and Affordable Care Act (ACA). As an academic interesting in statutory interpretation and legisprudence, the opinions are fascinating and capture two different but well-argued views of the role of both courts and agencies in dealing with legislative language.
An Egyptian court this week sentenced three al-Jazeera journalists to long jail terms despite international outcry over the attack on the freedom of the press. To further guarantee that nobody would mistake this for a real court, the judge further accused them of being guided by the devil in their work as reporters. Australian journalist Peter Greste, Egyptian-Canadian Mohamed Fadel Fahmy and Egyptian producer Baher Mohamed were convicted in June of aiding the Muslim Brotherhood by covering the “civil war” in Egypt. The court gave Greste and Fahmy seven-year terms and Mohamed a 10-year term. It also tried eleven defendants in absentia, including one Dutch and two British journalists. They were given 10-year sentences.
Soon after the D.C. Circuit delivered a major loss to the Administration in rejecting its statutory interpretation under the ACA in Halbig v. Burwell, the United States Court of Appeals for the Fourth Circuit has delivered an equally important victory on the very same issue in King v. Burwell. This tale of two circuits only increases the likelihood of a Supreme Court review and perhaps the case for expedited appeals.
As I have written about in columns and testimony, the most significant challenge to Obamacare was never Hobby Lobby but Halbig vs. Burwell that has been pending in the D.C. Circuit. I described Halbig in my testimony as a live torpedo in the water for Obamacare. Well, that torpedo just hit. The D.C. Circuit has found that the Obama Administration effectively rewrote the law on a critical provision dealing with tax credits and state exchanges. It is another major blow against the Administration and more importantly another judicial finding that President Obama exceeded his authority in his effort to “go it alone” in ordering such changes to federal laws.
There is a disturbing child pornography case out of Nebraska that also raises some challenging legal questions. Jeffrey Anderson, who entered a conditional guilty plea for one count of distributing child pornography, after digitally editing a photo of a naked adult woman having sex and replaced the face with that of an 11-year-old girl. He then sent the girl the photo with the caption “This is what we will do.” The Eighth Circuit upheld his 10-year sentence in rejected the conditional challenge to the charge.
Respectfully submitted by Lawrence E. Rafferty (rafflaw)-Weekend Contributor
I have been watching the water crisis in Detroit for some time now and I have been amazed that it is not a bigger story. If you haven’t heard, the new city Administrator of the City of Detroit that was appointed by the Governor and his Water Department have been turning off the water of needy citizens in Detroit when their past due bills are as little as $150.00. In a city with over 20% unemployment and countless vacant buildings, it seems like Detroit is slowly being destroyed. (more…)
Submitted by Elaine Magliaro, Weekend Contributor
Submitted By Darren Smith, Weekend Contributor
We previously reported of an outrageous lawsuit by the owners of the Il Giardino Restaurant in Cap Ferret, France who sued a blogger critical of the dining experience, HERE. Essentially Caroline Doudet was sued by the restaurant’s owners because her allegedly disparaging blog post ranked highly on Google searches for the restaurant–fourth in a Google search return the lawsuit claimed. The title of her critique was in the English, “The place to avoid in Cap Ferret, Il Giardino” and was the cause leading to the lawsuit, according to paperwork filed.
“I was really stunned and disgusted, and of course I will worry now [whenever I] write a negative review,” Doudet said of the effect of the case in an e-mail to Wired.co.uk. “I regret the article, because it’s so much noise for nothing.”
Nevertheless a French Court handed down an emergency ruling blocking the article’s title and awarding Il Giardino €2,500 in fines and court costs.
The restaurant’s owners claimed the title defamed them, causing great damage to a business they worked fifteen years, seven days a week to build and the Google ranking was causing them increasing harm. But in what became a new definition of “Damage Award” the internet came alive and rendered a harsh judgment in its court of appeals. Fame became infâme. And the repercussions were magnifique.
Submitted By Darren Smith, Weekend Contributor
Manuel Noriega, the former leader of Panama known for his indictment in the United States for drug smuggling, racketeering, and money laundering and his subsequent imprisonment, filed suit in Los Angeles County Superior Court alleging the game maker Activision Blizzard defamed him. The game in question is the popular “Call of Duty: Black Ops II”.
Manuel believes being portrayed “as a kidnapper, murderer and enemy of the state” in the game damaged his reputation. He further claims the company used his likeness and name in order to make money. Therefore, he is entitled to a share of the profits.
The game returned over a billion dollars in sales worldwide within months of release.