Wednesday, November 16, 2011

On the Verge of Gutting Individual Constitutional Protections?

California is trying to make its bureaucrats unaccountable dictators

The glue that holds a civilized society together is the knowledge that when a victim is wronged, a legal process exists by which the wrongdoer will be held accountable and the victim thereby compensated for his injury. While not perfect, we have a legal system in America today in which fair play and justice is expected. This expectancy represents an evolution of over eight centuries. It dates back to England’s 13th century Magna Carta which mandated “the foundation of the freedom of the individual against the arbitrary authority of the despot.” However, sometimes the justice expected in holding the wrongdoer accountable for the victim’s injury gets lost in the discord of lower courts raising constitutional issues independent of the underlying wrong. This leaves as final arbitrator the highest court in the land—the U.S. Supreme Court.

One such case that has run the gauntlet of discord will soon be before the US Supreme Court—Miracle Star v. State of California, Case No. 11-359. In dispute is a perfect storm of individual rights, a state government’s rights and federal rights under the US Constitution.

This case involves a plaintiff who filed a claim for injury suffered when California government representatives failed to provide claimant, Miracle Star, with rights of due process. The representatives also caused plaintiff—operating an overnight assistance program for handicapped persons, including those who are homeless—to have to shut down the operation: all for simply not having a tightly fitting trash can lid and a functioning light bulb in May 2004. California refused to renew plaintiff’s “state-approved” license, resulting in a cease and desist of operations order at that time, thus revoking Miracle Star’s license to continue service.

The defendant representatives had acted arbitrarily in doing so—thus violating a basic tenet of one’s individual rights that have been recognized over centuries. The trial court awarded plaintiff a $400,000.00 judgment. California appealed.

The Appellate Court overruled the trial court based on its reliance on applying two State cases permitting legal immunity. These cases even expanded the theory of government immunity to the breaking point, ignoring the prevailing violations of the US Constitution recognized by the lower court. The premise was, since the State was possibly immune, if argued based on these two state cases then the same lack of damages should be the result if federal damages were sought and won in the Miracle Star case.

The plaintiff brought an action in state court claiming California violated its rights, citing 42 U.S.C. Section 1983. In a nutshell, this federal statute says any government representative, whether federal or state, who deprives a citizen (which includes corporations) “of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured…” Without belaboring the specifics of the Appeal Court’s argument, the effective impact of its decision is that immunity is created for State employees inflicting injury on aggrieved victims who have been deprived of their constitutionally-protected right of due process.

In so deciding, the Appellate Court disregarded the superior law of our land based on the Supremacy Clause, which is the primary reason state courts maintain concurrent jurisdiction over such claims. But state courts, just as much as federal courts, are responsible for ensuring their officials do not run roughshod over the federal rights of any citizen. When an individual files such an action in state court, that court cannot simply decline jurisdiction over a federal claim, as is being done here, on the grounds that an act of Congress “is not in harmony with a policy of the state.” The decision by the Appeals Court in not upholding the superior law of our land is as wrong as it is dangerous.

The actual legal question that will now come before the U.S. Supreme Court is whether a state court, addressing a Section 1983 claim can prohibit the award of compensatory damages without violating the Supremacy Clause. The U.S. Supreme Court has repeatedly admonished state courts under Section 1983 claims for changing the remedial scheme Congress has provided—and part of that remedial scheme is an entitlement to compensatory damages. Yet despite the U.S. Supreme Court’s clarity on this issue, the California Court of Appeals overturned a jury award of close to $400.000. If the Court of Appeals decision stands, the bottom line to California citizens is that they will be deprived of a state court forum to litigate abuses of their federal rights by granting immunity to state officials where none exists. This case has snuck up on the legal community, creating a back-ended immunity whenever the State decides it will not follow the U.S. Constitution. This case also raises the possibility of expanding to other states claiming similar immunity.

Led by Martin Luther King, the civil rights marches of the 1960s sought and, through legislation signed by President Lyndon Johnson, achieved to hold the US government accountable for equal rights for all. That accountability—as well as the protections won via the Magna Charta and U.S. Constitution—will be gutted if the Court of Appeals decision is not reversed, also setting a dangerous precedent in diminishing the peoples’ right to hold their government accountable.

In signing the Magna Carta and launching a new era in the rights of the individual over those of the government, King John of England had little choice. He was forced to sign the document at knife point by subordinates tired of an arbitrary rule of law where the ultimate authority lacked accountability for his actions. We have advanced as a civilized society in the centuries since then so that the judges of the US Supreme Court will not be forcibly held to sign off on a decision whether to take on the Miracle Star case and on how to judge it. It is hoped, however, eight centuries of legal theory will not be tossed out the window and the U.S. Supreme Court judges will recognize the greater rights of the people of California to hold their government accountable for any abuse of authority.



The Same Old Obama

President Obama's various remarks at the Asia-Pacific Economic Cooperation CEO business summit in Honolulu over the weekend show he is simply incapable of growing in office. In just a few short statements, we saw many of the familiar practices through which he has alienated such a large percentage of the American people and damaged the economy.

Away from his teleprompter, he treated us to further insults of Americans, his unfriendly attitude toward business and the private sector, his narcissism, and his refusal to accept responsibility for his own actions.

In his Monday evening press conference from APEC, Obama showed that he can't shake his narcissistic impulses. One would think that with all that has been written about Obama's "me, myself and I" fixation, he would at least try to pretend to be other-directed on occasion, to show he has the capacity to think of his position as something larger than himself.

In his opening remarks, he didn't say that "we" or "Americans" want other nations to buy American-made goods, but "I want them to," and so "I've been doing everything I can to make sure" we stay competitive. He didn't say, "The United States was honored to host APEC this year," but "I've been proud to host APEC this year."

When NBC's Chuck Todd asked him to clarify his "hot mic" conversation with French President Nicolas Sarkozy, in which they both insulted Israeli Prime Minister Benjamin Netanyahu, he refused to comment, which means he refused to deny, much less apologize for offending the leader of our staunch ally, Israel, when he told Sarkozy, "You're fed up with (Netanyahu), but I have to deal with him even more than you do."

Two days earlier -- on Saturday -- Obama had modified his comment in September that Americans had "gotten a little soft" in competing in international markets. At APEC, Boeing CEO Jim McNerney asked him to consider the Chinese perspective and their concern about impediments to investment in the United States. How, wondered McNerney, would he address their dissatisfaction over these obstacles?

Rather than addressing the question directly, Obama deflected any responsibility for the situation and said, "We've been a little bit lazy, I think, over the last couple of decades. We've kind of taken for granted - well, people will want to come here and we aren't out there hungry, selling America and trying to attract new business into America."

I happen to believe that comment is absurd on its face, as even my small hometown in Missouri has made great efforts to bring foreign businesses into the community, sometimes successfully. Other communities throughout the United States daily engage in a competitive effort to attract businesses into their cities and states, and for the president to characterize them as "lazy," demonstrates he is as out of touch with Americans as he is disdainful toward them.

He might consider responding to the question next time, which involved impediments to doing business that often put American companies and communities at a competitive disadvantage in attracting foreign businesses. Doesn't Obama owe us all an answer to that question?

But to answer would require Obama to account for his own deplorable economic record and his hostility toward business, the private sector and the free market. A fair, reasonable response would have included his acknowledgment of how much damage his policies have caused to the American business climate, instead of an indictment of every American besides himself.

With his accelerating mounds of regulations, his imposition of Obamacare, his increased taxes, his incessant spending and the resulting jobs-challenged economy, why would foreign companies be any more excited about the Obama business climate than American businesses are?

Obama's aptly titled "Regulatory Czar," Cass Sunstein, protests, "the annual cost of regulations has not increased during the Obama administration." But the Heritage Foundation has called Sunstein out on that, just releasing a study showing that the administration is churning out regulations at a significantly faster pace than previous administrations. Obama recently announced reforms to eliminate burdensome, obsolete rules, but they were more hype than substance. Our regulatory costs are continuing to increase with no end in sight.

While little austerity was practiced in the regulatory area during the George W. Bush era, Obama has easily outpaced his predecessor. Through the end of March 2011, Obama had piled on $40 billion in new costs to the economy, more than doubling Bush's additions. In fiscal year 2010, Obama added $26.5 billion in costs, making it the record year for increased regulatory costs.

With Obama at the helm, in economic terms, among others, we've got the worst of all possible worlds: a rigid commitment to policies that harm rather than help, and personality traits that prevent him from admitting, learning from and correcting his mistakes. We'll just have to wait a little longer.



Big Dem Donors' Company to Cut Jobs Due to ObamaCare

Remember when Nancy Pelosi said ObamaCare would "create 4 millions of jobs – 400,000 almost immediately." Don't hold your breath.

Now that businesses have had time to "find out what's in it" as the former Speaker of the House invited, instead of job creation, jobs are actually being destroyed by the provisions of ObamaCare, just as concerned critics predicted. A study by the NFIB, the National Federation of Independent Businesses, predicted 1.6 million jobs would be destroyed by 2014 when ObamaCare would be fully implemented, mostly within small businesses. Even the CBO predicted 650,000 jobs would be destroyed by the legislation. It's happening.

Stryker Corporation is a manufacturer of artificial hips and knees for replacement surgery headquartered in Kalamazoo, Michigan. Due to a new 2.3% tax on medical devices that will be imposed because of ObamaCare, Stryker has announced a 5% reduction in the company's 20,000 employee global workforce in order to reduce annual pretax operating costs by more than $100 million prior to 2013 when the new tax is scheduled to kick in.

Ironically, Pat and Jon Stryker, the billionaire grandchildren of the company's founder and orthopedic surgeon Homer Stryker, have invested millions of their inherited fortunes electing Barack Obama and Democrats who passed the legislation that is destroying jobs and increasing costs at the company that made them rich.

Pat and Jon are ranked among the richest people in America by Forbes, and like to identify their occupation as "philanthropist." We doubt the Stryker employees who get fired will appreciate the result of Pat and Jon's political "philanthropy."



Mainstream Economic Theory Meets Reality

Economic theory is perfectly acceptable. But in the real world, economic reality is much more important.

Yet in a recent Associated Press news story, reporter Charles Babington seems to have confused theory with reality. After noting that most of the GOP candidates are pressing for lower taxes and less regulation, Babington clucks that these steps aren’t likely to work. “Mainstream economic theory says governments can spur demand, at least somewhat, through stimulus spending,” he wrote. “The Republican candidates, however, have labeled President Barack Obam’s 2009 stimulus efforts a failure.”

Let’s consider Babington’s assertion.

It’s certainly true that “mainstream economists” think government can stimulate demand. That’s a perfect description of Keynesian economics. But there’s no need to turn to economic theory to see what the 2009 “stimulus” bill has wrought. In the real world, the 2009 stimulus efforts are a failure.

Recall that Congress spent almost $800 billion, much of it on supposedly “shovel ready” projects that were supposedly going to produce jobs. Before they went to work at the White House, two “mainstream economists” predicted that the bill would keep unemployment to less than 8 percent. They also predicted that the measure would create even more jobs in 2010 and 2011.

Instead, the unemployment rate climbed steadily throughout 2009, reaching 10.1 percent by October. It remained higher than 9.5 percent throughout 2010, and hovers at 9.1 percent today. Economic theory was all well and good, but economic reality is what matters to those who can’t find work.

As Daniel Mitchell, a less-mainstream but still prominent economist at the CATO Institute, writes, “the problem with Keynesianism is that it fails the empirical test. The Keynesians may be good at constructing models, but that doesn’t mean much if the models don’t match the reall world.” And they don’t.

But Babington’s not finished. “Key proposals from the Republican presidential candidates might make for good campaign fodder. But independent analyses raise serious questions about those plans and their ability to cure the nation's ills in two vital areas, the economy and housing,” he writes. “Consider proposed cuts in taxes and regulation, which nearly every GOP candidate is pushing in the name of creating jobs. The initiatives seem to ignore surveys in which employers cite far bigger impediments to increased hiring, chiefly slack consumer demand.”

Well, it isn’t simply presidential candidates who are clamoring for less regulation; so are business leaders. In the Wall Street Journal, L. Gordon Crovitz says the late Steve Jobs warned President Obama that he was “headed for a one-term presidency.” Jobs was an Obama supporter, and meant that as a warning for the president to change course.

“Apple’s founder said regulations had created too many burdens on the economy,” Crovitz adds. “High-tech companies are supposed to be the country's engine for growth, but the federal government is gumming up the works.”

Want another view from the top? “Washington’s political gridlock and volatility threaten to derail an economic recovery that wants to take flight. Observers are right to perceive a collective failure to govern, and that perception creates costly uncertainty for job-creating American businesses,” writes Jim McNerney in the Wall Street Journal.

He’s the CEO of Boeing, a company that’s trying to create jobs in South Carolina but is being stymied by regulators at the National Labor Relations Board. McNerney adds: “The regulatory climate is a perfect example. A tsunami of new rules and regulations from an alphabet soup of federal agencies is paralyzing investment and increasing by tens of billions of dollars the compliance costs for small and large businesses.”



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The Big Lie of the late 20th century was that Nazism was Rightist. It was in fact typical of the Leftism of its day. It was only to the Right of Stalin's Communism. The very word "Nazi" is a German abbreviation for "National Socialist" (Nationalsozialist) and the full name of Hitler's political party (translated) was "The National Socialist German Workers' Party" (In German: Nationalsozialistische Deutsche Arbeiterpartei)


1 comment:

Sally said...

Well I think you said it well in the first paragraph; our legal system is far from perfect but it does offer the most fair and balanced probably in the world. There are many California legal cases I'm sure that can support your argument. Goes to show how important voting for the city, state, and federal leaders is and that is does affect each of us.