Wednesday, April 11, 2012

What Judicial Activism?

By Daniel Mandel

Last week, President Barack Obama warned the Supreme Court against the perils of judicial activism. Specifically, he warned against the Court ruling unconstitutional Obamacare.

"Ultimately," said the President, "I'm confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress."

If so, this would certainly run counter to President Obama's position in 2005, when, as one of only 22 senators opposing the confirmation of John G. Roberts as Chief Justice, he stated he would support the appointment of a judge "who upholds the Court's historic role as a check on the majoritarian impulses of the executive branch and the legislative branch."

In any case, the congressional majority for Obamacare was far from strong. True, the Senate vote was decisive enough -- 60 to 39 -- albeit along party lines, with no Republicans on board. But in the Congress, the majority was slim -- 219 to 212 -- again, with no Republicans voting in favor.

In any case, however, the extent of the majority is irrelevant. The Court's duty is to ascertain the constitutionality of the law and may strike it down if it finds it wanting. That duty is not attenuated by the size of the majority with which the law was passed.

"For years," continued President Obama, "what we've heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law. Well, there's a good example, and I'm pretty confident that this court will recognize that and not take that step."

Yet President Obama, as a former constitutional law professor, knows better than most that judicial activism is not defined by judges striking down a law. It is defined by striking it down without constitutional warrant, on the basis of newly propounded rights or duties never approved by the legislature. In contrast, striking down a law that violates the Constitution is scarcely judicial activism.

But then it is typical for those favoring judicial activism to beseech conservatives, in the name of judicial restraint, to robotically confirm unconstitutional laws.

And the President is such an activist. His two nominees to the Supreme Court -- Sonia Sotomayor and Elena Kagan -- have been judicial activists. As he put it in 2005, his preference was for someone who would give decisive weight, where legal clarity is lacking, to "what is in the judge's heart." One suspects that the President's best hope now is that Chief Justice Roberts sticks to the Constitution -- though even this may not save Obamacare -- rather than do any such thing.

The New York Times' Maureen Dowd has attacked the Court as "accountable to no one once they give the last word." Perhaps, but would she wish this altered in the case of Brown v. Board of Education, which ended segregation in schools and entailed overturning laws deemed to have violated the Constitution?



The Clash of Civilizations Has New Venues

When historian Samuel Huntington wrote Clash of Civilizations in 1997, our already politically-correct culture found him over the top at best, and bigoted at worst. Academics around the world weighed in at conferences and in reviews of this book, many of them uncomfortable over his picture of Islam.

Huntington recognized that the end of the Cold War did not mean the end of conflict in the world. The newest variety would be more difficult in some ways than that between the Soviets and the West, both of which were at least varieties of the same civilization. The rise of Islamic militarism, however, would be a different sort of war because such militants lived widely throughout the world, often embedded within other civilizations.

After the 9/11 attack on America, Huntington was given another look. He commented that everywhere Islam was and had been, the borders with other civilizations were bloody. We have focused on the hostilities between Palestinians and Israelis too much, whereas other border areas are in far more peril. We have also concentrated on the problems between Arabs and the West, whereas Islamists are just as hostile toward Buddhists and Hindus.

Thailand, a country known for its appeal to tourists, has been fighting Islamism for years in Muslim majority enclaves. Today, however, the conflict is escalating. On March 31, Muslim insurgents staged the most deadly coordinated attacks in years in Thailand's restive south (see Sumeth Panpetch, Associated Press), killing 134 people and injuring 340 with car bombs that targeted Saturday shoppers and a high-rise hotel frequented by foreign tourists.

Note what they are targeting: tourism, a mainstay industry for Thailand. The midday explosion at the 405-room Lee Gardens Plaza Hotel targeted Malaysian and Singaporean tourists enjoying their weekend getaway. This same hotel was targeted in 2006 as well. Last year, suspected militants staged coordinated attacks at more than 30 spots across Yala city, killing three people and injuring more than 50. A month earlier, a trio of bombs hidden in vehicles hit a busy section of Sungai Kolok, killing four people and wounding more than 60.

India has suffered from several appalling attacks such as the coordinated massacres in Mumbai, coordinated from Pakistan. The terrorists were going after not only secular Hindus, but secular Muslims as well, and even managed to find a lone Jewish family to murder.

Terrorists managed to explode a nightclub in Bali, Indonesia, a tourist mecca for Australians and other westerners. There have been more attacks in Indonesia, which, although primarily Muslim, is “too western” for the insurgents.

These places are obviously Islam's Bloody Borders. But what happens when the insurgents are embedded in the west? Do we have bloody bordered neighborhoods? Apparently so. In Sweden's city of Malmo (population of 300,000), Muslims now comprise between 20% and 25% and have a virulently anti-Semitic Muslim mayor. Much of the increase in anti-Jewish violence in recent years is being attributed to shiftless Muslim immigrant youth. In recent months, the only synagogue serving Malmö's 700-strong Jewish community has been the focus of repeated attacks. The synagogue, which has previously been set on fire and been the target of bomb threats, now has guards stationed around it, while the Jewish kindergarten can only be reached through reinforced steel security doors. This is but one of many such enclaves throughout Europe.

Huntington knew bloody borders when he saw them.



How (and Why) Obama has Impeded Recovery

Alan Caruba

During and after his 2008 campaign, Barack Obama was hailed as the second coming of Franklin D. Roosevelt. History records that Roosevelt presided over the Great Depression, begun in the previous administration of Herbert Hoover who got most of the blame. Roosevelt’s policies extended it well beyond the normal recovery from a recession.

In his book, “Dupes”, historian Paul Kengor, wrote “Roosevelt won in a landslide in November 1932. To liberals and traditional Democrats everywhere, he was more than just a new face at 1600 Pennsylvania Avenue. He was a kind of political savior at the most desperate time in their lives.”

Roosevelt was immediately assailed by the Communist Party USA as he launched his New Deal stew of programs intended to reverse the effects of the economic crisis. As Kengor notes, “No president had ever moved so far to the left, and so quickly, but it was not enough for the comrades.” They portrayed Roosevelt “as a warmonger bent on wreaking havoc on the poor USSR (Soviet Russia)” because they feared the U.S. might go to war against it.

As we now know, some of Roosevelt’s closest advisors were either Communists or extremely sympathetic to Communism. Harry Hopkins was one of them and was later exposed as a likely Soviet agent. The Venona transcripts of secret communications between U.S. Communists and their Soviet handlers revealed this.

Obama came into office following the 2008 financial crisis which, as we know, he blamed entirely on George W. Bush. Triggered by Fannie Mae and Freddie Mac, two government-sponsored enterprises, the crisis reflected the many “subprime” mortgages they had pressured banks to make. Bush’s efforts to rein them had fallen on deaf ears.

Like Roosevelt, Obama initiated a number of policies and legislation, not the least of which was his “stimulus” package to turn around the economy, but which has left it with a higher level of unemployment today than in 2009-10. His other initiative, stimulating Green energy has cost taxpayers billions.

In “New Deal or Raw Deal?” historian Burton Folsom, Jr., wrote of Roosevelt’s National Industrial Recovery Act (NRA) documenting that it and other measures did nothing more than balloon the federal government while interfering with the normal action of capitalism to recover—as it had many times before—from financial crises.

Oklahoma Senator Thomas Gore, first elected in 1907, summed up Roosevelt’s efforts saying at the time, “No depression can be ended by gifts, gratuities, doles, and alms handed out by the Federal Treasury, and extorted from taxpayers that are bleeding from every pore.”

Writing in the April 3rd Wall Street Journal, Edward P. Lazear, 2006-2009 chairman of the President’s Council of Economic Advisors, wrote about “The Worst Economic Recovery in History.” Assessing Obama’s policies, Lazear said that “our current recovery pales in comparison with most other recoveries, including the one following the Great Depression.”

“The Great Depression started with major economic contractions in 1930, ’31, ’32 and ’33. In the three following years, the economy rebounded with growth rates of 11%, 9%, and 13% respectively…According to the National Bureau of Economic Research, the recovery began in the second half of 2009. Since that time, the economy has grown at 2.4%, below our long-term trend by either measure. At this point, the economy is 12% smaller than it would have been had we stayed on trend growth since 2007.”
“It would be difficult to argue,” wrote Lazear, “that government policies over the past three years have enhanced confidence in the U.S. business environment. Threats of higher taxes, the constantly increasing regulatory burden, the failure to pursue an aggressive trade policy that will open U.S. exports and the enormous increase in government spending all are growth impediments.”

Like Roosevelt, Obama has impeded a rebound in the growth of the economy and he has done it by applying all the wrong Socialist “solutions” that extended the Great Depression from 1929 to 1941.

It would be naïve to think he did not know what he was doing. If one wanted to bring the United States of America to its knees, he would pursue Obama’s policies of the past four years.



The crooked TSA loses one

Reader Rob Carty has directed our attention to this week’s opinion by Judge Lynn N. Hughes of the United States District Court for the Southern District of Texas in the forfeiture case of The United States of America v. $35,131.00 in United States Currency. Mr Carty briefly summarizes the decision:
Judge Hughes spanked Homeland Security for tricking an American family into “evading” their duty to report how much cash they were taking out of the country. It contains some very choice words. My favorite quote: “In addition to overreaching the people whom they are to serve, three officers wasted one-half day watching four others embarrass themselves.”

Here is my favorite quote:
A lack of leadership at the agency allowed this. Its mission statement – which none of the officers could recall at the trial – is to serve the American public with vigilance, integrity, and professionalism. They displayed none of these. The agency says that integrity is its cornerstone; that its officers are guided by the highest ethical and moral principles. A gang of armed security officers bullied this family – a family who cooperated with the officers to their detriment. Our homeland will not be secure by these rascals. They played agency games, abused the people they are to serve, and violated their oaths to support the Constitution.

For a short opinion, it is full of quotable quotes. Here it is in its entirety, without the section breaks or footnotes, under the heading Opinion on Void Seizure:
At the airport, federal officers confiscated $35,131 from a family flying to Ethiopia. They said that the couple intentionally attempted to evade the reporting requirements for taking money outside of the United States. The citizens clearly had no intention to violate the rules, and the government must return their money and pay for their attorney’s fees and costs of court.

On June 2, 2011, Kyle Jones and his wife Berekti Jones were at George Bush Intercontinental Airport with their daughter Soliyana. They were flying to Ethiopia through Dubai and planned to stay in Addis Ababa for two, months while visiting family and celebrating Soliyana’s second birthday.

The law requires that an international traveler declare on a form(a) that he has no more than $10,000 or (b) report the amount. When the couple reached the first check, officer Agustin Hernandez from the Customs and Border Protection of the Department of Homeland Security asked Kyle how much currency and monetary instruments he had on him. Kyle responded that he did not know. Hernandez then asked how many dollars he was carrying; Kyle replied that he would guess around $20,200. Hernandez wrote $20,200 on the form. He told Kyle to sign it, and Kyle did.

Hernandez then took the family to another table where officer Charlesworth Clarke told them to put all of their currency on it. At that point, Kyle asked what counted as currency because he had traveler’s checks. From his six carry-on bags and jacket he retrieved everything – $20,000 in traveler’s checks and $11,131 in cash. Berekti, who had been tending to their daughter during the conversations, handed the officer her wallet. It had $q,ooo in cash. The officers then frisked the Joneses and searched their bags, and found no additional money – however described.

The officers seized the entire $31,131 that the Joneses had voluntarily given them and released them from custody. Having missed their flight, the Joneses spent $1,500 to replace the tickets plus having had to rent a hotel room.

Six officers appeared at the trial, four of whom testified. A “case agent” sat with the government’s counsel. He knew nothing. His sole contribution had been to enter data into a computer; he could not have assisted the United States attorney. In addition to overreaching the people whom they are to serve, three officers wasted one-half day watching four others embarrass themselves.

The government presented no evidence – none – that the Joneses intended to evade the reporting requirements. Kyle told Hernandez that he did not know the amount of money he was carrying. Saying “I do not know” is not a deliberate failure to report. After Hernandez insisted on an answer, Kyle said that he would have to guess.’ Guessing is not a material omission or a misstatement of fact – certainly not one the government can use to steal the money.

The agency’s official publications say that its officers can help travelers complete the form if they require assistance. Instead of ensuring that the Joneses understood the scope of “monetary instruments” and other reporting requirements, the officers took advantage of their guess. Hernandez instructed Kyle to complete the form before allowing him to count his money, and the others never let them correct it once their guess was shown to have been low.

These public servants sought to earn credit with their agency by collecting money. Some of it is returned to the agency – like justices of the peace whose pay is derived directly from the fines they impose. They focused on bureaucratic imperatives – not their duties to the public and law. [Here Judge Huges footnotes Leonard W. Levy, A License to Steal: The Forfeiture of Property (1996).]

The agencies that manage law officers create profiles of suspicious people. Ignoring for a moment that they include contradictions – like he rushed or he was very early, he looked the officer in the eye or he evaded looking him in the eye – the Joneses displayed no suspicious behavior. At every step they were candid if imprecise. They were traveling as a family, in normal dress, and remained polite and calm.

They were taking money for a two month stay in Addis Ababa, Berekti’s city of birth – a city that operates almost entirely in cash. It was reasonable that they would have cash and traveler’s checks, and it was a precaution to split it among their bags and each other. Nothing was hidden.

Hernandez never should have asked Kyle to sign the form on a guess; rather, he should have had him count it at the second station and report the exact amount. Hernandez, with the connivance of his fellows, showed the only deceit. It appears that the officer’s entire approach was to target the Joneses. They should have taken the family to the side and allowed them to count their money. They should have explained what constituted currency and given them adequate time to complete the form. Instead, they manipulated the Joneses’ confusion into a deliberate failure to report. The officers accepted a guess from Kyle. When it was wrong, they took all of their money – for no harm and no deceit. They had no interest in ensuring that the couple adhered to the law. They wanted a statistic for their supervisor, and they cudgeled the Joneses to get one.


NOTE: There are a couple of updates on my post of yesterday headed "What Jesus said about capitalism"



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1 comment:

Anonymous said...

If you are allowing comments now, I think that is great.

I am a lawyer and I view the cash reporting requirement as tantamount to a cash prohibition.

First, is there a de minimus clause to the requirement? IF I am carrying and report $1 mil and one cent is found in my pocket unreported, can the entire amount be confiscated as unlawfully carried out of the country?

Could federal agents simply add a few dollars to a reported cash stash and take it all?

If you carry foreign currency (not rare for international travelers) or gold, and you report in native currency or face value of gold coins way could it be confiscated because they deem it reportable in a different way (converted to US dollars or value of weight of gold).

What is the definition of currency for purposes of the statute? Would a piece of coin jewelry render your otherwise accurate disclosure a crime? Is an ATM card equal to cash to the amount of your account balance? Is a gift card or prepaid Amex card cash? If a child is traveling with you, does the cash he carries add to yours for the disclosure, if he carries less than ten thousand dollars? A watch made from a gold coin? A counterfeit bill?

Finally, if you were traveling with a great amount of cash to exarcise your right to take unlimited amounts of currency outside of the USA, once you declare the ten million dollars cash in your pocket, do you have any confidence it will not be taken from you? Isn't the norm in America that a large amount of cash is preemptively drug money or laundered money?

Good luch trying to get back waht you honestly reportrd even if no wrongs on your part.