Fear, Loathing, Clinging, and Buying at an Awesome Clip

The phrase is an infamous part of the history of the 2008 election.  Those small-town folks that “cling to guns or religion or antipathy to people who aren’t like them…”  Its one of the reasons that some fear the policies of the Obama administration.  That fear has culminated in another form of economy stimulation; gun sales.

Before the election was complete, national papers were reporting on one aspect of the bubbling fear of an Obama presidency coupled with a Democrat-controlled Congress.  According to a recent post at the Volokh Conspiracy, that pot has bubbled over.  Comparison of monthly increases in background checks relative to the previous year indicate a staggering 42% response to the November election of President Obama.  Even if the numbers don’t persuade you, the zeitgeist of gun-enthusiasts is a fear of returning to the Clinton-Era ban on “assault-style” weapons or ammunition taxes.

While gun sales go on at an impressive clip and some advocate investing in the stocks of gun-manfucturers, the rationality of the response is called into question.  Is this even a response to the Obama presidency, or to the economy in general?  A second Volokh post suggests suspicion that the rise is related to the economy (and interestingly, suspicion of an impending Obama presidency, though the data from the election month was noticibly lacking).  President Obama professed his belief in the Second Amendment, and voices his support of “common-sense gun safety laws.”  But with Attorney General Eric Holder’s February announcement that the President seeks “to reinstitute the ban on the sale of assault weapons,” perhaps that fear is well founded.


Published in: on March 31, 2009 at 9:11 am Comments Off on Fear, Loathing, Clinging, and Buying at an Awesome Clip

Vice Presidential Records

Although the focus in the US general presidential election is usually on the presidential nominees, this election has provided a unique focus on the vice president.  Last night’s vice-presidential debate focused mainly on the differences between their presidential running mates.  One question towards the end, however, discussed the unique position of Vice President Dick Cheney’s approach to the Office of the Vice President (OVP) – his contention that the vice president is neither a part of the executive branch nor a part of the legislative branch.  This distinction is so crucial because it has a direct impact on the retention of records of the vice president. In the beginning of September, a DC watchdog group known as Citizens for Responsibility and Ethics in Washington (CREW) filed suit in federal court challenging the OVP’s decision not to comply with the Presidential Records Act (PRA).  About two weeks ago, Judge Colleen Kollar-Kotelly issued a preliminary injunction preserving all relevant records pending the outcome of the CREW lawsuit.

The Presidential Records Act essentially makes the non-personal records (as they relate to constitutional, statutory, or official ceremonial duties) of  the President of the United States property subject to preservation, and it also applies to the records of a vice president in the same manner as those of a president.  Executive Order 13,233 issued by President Bush stated that the PRA applied to the executive records of the OVP.  The OVP has said that it will not and does not have to comply with the PRA, along with other acts, because it does not reside in the executive branch of our government.

David Addington, Vice President Dick Cheney’s chief of staff and former counsel to the vice president, has told Congress that “the vice president belongs neither to the executive nor to the legislative branch, but is attached by the Constitution to the latter.”  This attachment, the OVP argues, exempts it from preserving its records.  In response to the CREW lawsuit, the OVP said that it will preserve records that relate to the Vice President’s duties as President of the Senate or that relate to duties specifically assigned to him by the executive power of the President.


Published in: on October 3, 2008 at 4:50 pm Comments Off on Vice Presidential Records

Solicitors General: Above the Fray?

Last week former Solicitor Generals Paul Clement and Walter Dellinger kicked off the annual Supreme Court Preview with a discussion, co-sponsored by ACS, about whether and how the Solicitor General can stay above the political fray.

Intro to the Solicitors General

Paul Clement began by explaining what the Solicitor General does. In addition to playing a crucial role in selecting cases for appeal on behalf of various government agencies, and choosing which theory of a case the United States should endorse, he is essentially the lawyer for the government in the Supreme Court, and as such. Clement gave the example of the conflicting position the Board of Prisons and the DOJ Civil Rights Division tend t to take on similar questions, and it is up to the SG (subject to direction by the White House) to decide which position best reflects the values of the federal government in general. Walter Dellinger offered a complicated series of tie-breaking rules to consider, including how long a particular agency had taken a particular position, and the principle that, whenever possible, the SG will defend congressional laws, even when the Executive branch may disagree with the policy preference therein made. Dellinger also offered an example from his experiences where he warned the executive branch that calling their legislation “the line item veto” was a bad idea and that they might as well call it the “unconstitutional line item veto”, or his personal recommendation “the discretionary budget authority act.”

A great deal of the discussion revolved around whether political neutrality was, for the SG, a means or an end. That is, does the SG generally maintain political neutrality in order to more effectively advocate for the position of the President (as in, choosing to pursue only the positions most likely to win in the Court even if that means forgoing more appealing ideological choices) or is political neutrality an independent ideal of the SG’s office (such as might be the case in the Department of Justice, which is officially an executive agency, but which the public expects to conduct itself with a great deal of independence from the White House).


Published in: on September 29, 2008 at 11:53 pm Comments Off on Solicitors General: Above the Fray?

Retroactive Immunity: Not A Compromise

A deal has been reached in the House under which the telecommunications companies, which permitted the President to illegally spy on Americans, will have the cases against them dismissed once the Attorney General represents to a US District court that the Government requested their cooperation in obtaining wiretaps of American citizens in violation of congress’ own prior law on the subject. The deal has now passed the House and goes to the Senate next week where a vote will be held on removing this provision, but which no one seriously expects to succeed. I don’t have much more to say about the merits of the arguments in favor or against this retroactive immunity that I haven’t already said before. I do, however, have two observations to provide, for whatever they are worth.


Published in: on June 23, 2008 at 10:30 am Comments Off on Retroactive Immunity: Not A Compromise

Justice Scalia on Bush v. Gore

Justice Scalia reacted indignantly when questioned about the Court’s decision in Bush v. Gore, suggesting everyone should “get over it” because the legal issue “wasn’t even close.” While I have always thought that outrage, while predictable and in some sense justified, the Court largely handled the legal issues fairly.

The problem with Justice Scalia’s dismissive response is not his justification of the ruling on the merits, the problem comes at the end where he says “what were we supposed to say? ‘It’s not important enough?'” Now I don’t expect CNN to get into fine questions of constitutional law, but Justice Scalia could stand a little humility when answering this question. Should the Court have said “we won’t hear it, the case isn’t important enough,” of course not. Quite the contrary. Look over the following passage from Baker v. Carr, which to the best of my knowledge is still good law on this point, and ask yourself whether it would be so preposterous for the Court to decide it wasn’t their place to make this call:

“Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.”


Published in: on April 24, 2008 at 10:46 pm Comments Off on Justice Scalia on Bush v. Gore

Telecom Spying– You Are Still Not Safe

You’re still not safe because there’s still no terrorism exception to the rule of law. That was the message from the Attorney General this week in his address to the Commonwealth Club of California. After his initial remarks (which were on the ongoing effort to fight public corruption) he solicited a question on the debate over retroactive immunity for the telcoms violations of the statutes protecting the privacy of their customers at the behest of the President.

I don’t write this because I expect to change anyone’s mind, this isn’t that kind of issue. I am writing this because I am tired of being talked down to by people who exude a sense of entitlement to conduct themselves as they see fit, the rule of law notwithstanding. We may see legal protection for the telcoms fairly soon – Congress will reconvene on April 14th – but it will be all the more tragic because we won’t be able to hide behind a claim of ignorance like we did with the Patriot Act.

The Attorney General began by explaining, from his perspective, why the telcoms are being sued:

“[The telcoms] are being sued … because they are believed to have responded to the direct assurance by those in authority that the President had asked them to help collect foreign intelligence against foreign targets – we’re not talking about domestic surveilliance … of targets located abroad, and that it was legal”

Wrong. The telcoms are being sued because they broke the law. This is one of the most offensive aspects of the rhetoric being used. What the Attorney General is trying to describe is a legal justification for what the telcoms did. If he is right, there is a good chance that they in fact did not break the law. Fantastic right? So why do we need to immunize them, just let them win in open court. In fact, if the claims are half as frivolous as the Attorney General suggests, the plaintiffs would have been thrown out a long time ago. Later on, he comes back to this, saying “we need and get court permission … to [conduct surveillance on Americans here in the United States],” again saying this is about foreign intelligence and foreign targets. Whatever planet the Attorney General is living on, the lawsuits here in the United States are brought by Americans who claim that THEIR rights have been violated.


Published in: on April 4, 2008 at 11:48 pm Comments Off on Telecom Spying– You Are Still Not Safe

Senate Immunizes Warrantless Wiretapping

Jim Webb, John Warner, and a supermajority of the Senate (68-29), just sold you out. The Senate just passed a bill which would excuse the telecommunications companies for violating the rights that same Senate conferred upon you. Make no mistake, there hasn’t been the slightest suggestion that what they did was legal. Rather, those supporting retroactive immunity for the telcoms suggest that they are entitled to break the law when they do so for the sake of national security. Specifically, when the government asks them to provide your private communications without even trying to get a warrant from a secret court, or complying with the already expansive powers conferred upon it following 9/11.


But the whole national security angle is a farce — the President vowed to veto the very legislation very that would give him access to FISA warrants unless it contained retroactive immunity for his cronies. It is, sadly, understandable, since the power to act outside the law is more valuable than the authority to act within its constraints, but the fact that every Republican senator was willing to wager (See “Update III”) the ability to obtain legal FISA warrants against the prospect of obtaining retroactive immunity for those who broke FISA should be inexcusable in a country that believe it is governed by laws, not men.


Published in: on February 14, 2008 at 2:45 pm Comments Off on Senate Immunizes Warrantless Wiretapping

Re Fwd Executive Privilege (TTYL)

Remember the blog post from June where we raised the question: Is Rove the most prolific emailer of all time? Well, we might finally get our reply.

Though the Bush administration has asserted executive privilege over the emails from aides and officials, U.S. magistrate judge urged a federal judge last week to order the White House to preserve the documents in question. Judge John M. Facciola said that the order must be made to ensure that the White House does not destroy the backup tapes of the emails.

The order was issued as part of lawsuit that the Citizens for Responsibility and Ethics in Washington filed against the White House stemming from the withholding of emails sent between March 2003 and October 2005. The emails had been requested through a Freedom of Information Act request.

The White House has 10 days to file an objection before U.S. District Judge Henry H. Kennedy Jr. can issue the official order.


Published in: on October 23, 2007 at 11:12 am Comments Off on Re Fwd Executive Privilege (TTYL)

Cartoon of the Week

By Dwane Powell , The Raleigh News and Observer
From the Cartoonist Group.

Courtesy of Center for American Progress Action Fund (here)

Published in: on October 19, 2007 at 8:02 pm Comments Off on Cartoon of the Week

Renewed Vigilance

The Office of Homeland Security was hoping the title of this post would refer to the new level of surveillance they would be making available to state and local law enforcement agencies. Intelligence satellites, which had previously been available domestically only for meteorological purposes, were slated to become accessible through a new program to be launched October 1. Though Congress has already approved funding for this program, which would create a National Applications Office to review requests for the information, it’s currently on hold thanks to concerns from Congress about privacy infringement.

For some in Congress, this brought to mind the domestic wiretapping scandal that arose shortly after September 11. On that topic, Representative Jane Harman (D-CA) said, “Since we’ve been rolled, I intend not to get rolled again.” A comment that amusingly brings to mind a rationale used by President Bush about being fooled once.

It is noteworthy that this is merely a delay and not a cancellation of the program. The Office of Homeland Security spokesman Russ Knocke remains confident that it will ultimately go through once Congress has been satisfied there are sufficient safeguards. (more…)

Published in: on October 3, 2007 at 7:45 pm Comments Off on Renewed Vigilance
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