Time-Warp

Forever ago (second post) I wrote about Barack Obama's evolution towards supporting same-sex marriage:

I believe that President Obama has lied to the American People. It's en vogue  to call the President a liar.  It's fashionable to call any president a liar actually, but that's a different subject for a different day. Despite his policy positions, he has to be a Socialist-Marxist-Kenyan-Muslim-Secularist-Atheist-Christhating-SOB, because he is lying.

The basic history of Obama goes like this. He has been in the closet for the last eight years. He experimented with supporting Gay Rights in college like so many do, but then was scared back in when he realized  people might judge him for it. Finally his conscience caught up with him and after he outed himself, he looks like the weight of the world has been taken off his chest. 

However I think President Obama was actually lying to the American Public in 2004 when he stated that marriage should be between a man and a woman religious-blah.  His comments were in contradiction to his 8 year old (law professor) statements that he supported ultra-gay marriage. And once again he said it was his personal religious convictions that made him no longer support gay-marriage.

[...]

In 2004 Obama upgraded to Obama 2.0 and became a real politician. Like any real politician his position crapped on the 14th Amendment. His official stance was the issue was separate but equal (because we all know how that worked out the first time).  I can only conclude that this was a position taken because at the time Guns, God, and Gays.  Even at this time he supported Civil Unions thus supporting the freedom to love and live with whoever you want. The moral of the story is apparently politics are stupid and make good rational men make terrible decisions for no real reasons.

Then in 2012 crazy eyes Uncle Biden blurted out in front of the whole family on Thanksgiving that President Obama is gay for gay-marriage. Interestingly his policy shift happened 2 months after the Ninth Circuit issued their decision on Perry v. Brown and after it was announced it would be heading for the Supreme Court in the not too distant near. 

I never understood the whole "evolving" phrase. If you know where you are heading intellectually why not just go there and cut out all the bullshit. Anyway, recently in his book, David Axelrod has back up my hunch.

Because of Axelrod's statements, it forced the President to respond via BuzzFeed, naturally:

“I think David is mixing up my personal feelings with my position on the issue,” Obama said. “I always felt that same-sex couples should be able to enjoy the same rights, legally, as anybody else, and so it was frustrating to me not to, I think, be able to square that with what were a whole bunch of religious sensitivities out there.” 

Obama said he believed at the time that civil unions were “a sufficient way of squaring the circle,” but that “the pain and the sense of stigma that was being placed on same-sex couples who are friends of [his]” changed his mind. 

“I think the notion that somehow I was always in favor of marriage per se isn't quite accurate,” Obama said. “The old questionnaire … is an example of struggling with what was a real issue at the time, which is, how do you make sure that people’s rights are enjoyed and these religious sensitivities were taken into account?”

Busted. One thing that probably should be mentioned again, the President campaigned in favor of same-sex marriage for his second term. So while I half heartedly call him a liar, it should not delegitimize either his authority on the subject or the progress gained due to his support.

The only portion of the President's statements that I really take issue with is "The old questionnaire … is an example of struggling with what was a real issue at the time, which is, how do you make sure that people’s rights are enjoyed and these religious sensitivities were taken into account?"

Once again it comes down to the question, "what about my religious sensitivities?" Why can't I get married in a church, just because someone from a different religion disagrees? Why should my religious beliefs count less?

I am glad to see that I have prevailed, and my hunches have been validated.


Liam '15

To Sue the President (Part III)

This is the second part of an on going series in which I will cover the lawsuit initiated by the House of Representatives again President Obama.

Click here for Part I, Part II


I think it is important to start the deeper analysis by focusing on the question of whether or not an Article III Court can even hear a possible lawsuit by the House of Representatives against the President.

Lyle Denniston, who is perhaps best know for his work at SCOTUSblog, while writing for the National Constitution Center briefly laid out what the basic issues are when it comes to using litigation as an alternative to impeachment:

But what of the alternative of suing the president? First, someone with a definite legal grievance against the president, who can show that the president’s actions have actually caused that person (or that organization) some injury, must be available to file the lawsuit.  Second, the courts must be willing to allow themselves to be drawn into the middle of a dispute between the other two branches of the federal government, and must have the power to actually resolve that dispute in a specific constitutional way. Suing a president – that is, the mere fact of filing a lawsuit – is much easier than getting articles of impeachment approved by the House.  But succeeding in such a lawsuit is another matter.

Mr. Denniston [1] rightfully points out that in civil litigation one must always point to some form of injury. I cannot stress this enough. Injury is the foundation of law. Without injury, there is no need for adjudication. The first question that the court needs to be answered is if the elements of a lawsuit have been satisfied.

The problem insofar as analyzing this avenue is that as of this moment the House of Representatives has not put forward a Cause of Action. So we do not know what precisely the House is suing over, which makes it difficult to say with certainty if the elements have been met.

The second point of the article is referring to the Political Question Doctrine, which I find to be just as interesting as the first issue. It is also the area that I want to examine further in depth.

Wex Dictionary, which is sponsored by the Cornell University Law School, defines the Political Question Doctrine as the following:

Federal courts will refuse to hear a case if they find it presents a political question.  This phrase is construed narrowly, and it does not stop courts from hearing cases about controversial issues like abortion, or politically important topics like campaign finance.  Rather, the Supreme Court has held that federal courts should not hear cases which deal directly with issues that Constitution makes the sole responsibility of the other branches of government.  Baker v Carr, 369 U.S. 186 (1962). Therefore, the Court has held that the conduct of foreign relations is the sole responsibility of the executive branch, and cases challenging the way the executive is using that power present political questions. Oetjen v. Central Leather Co., 246 U.S. 297 (1918). Similarly, the Court has held that lawsuits challenging congress' procedure for impeachment proceedings present political questions.  Nixon v. United States, 506 U.S. 224 (1993).

So essentially if the Constitution makes a subject the sole responsibility of  one branch of the government, they cannot be sued by the other in an Article III Court. (A bit of topic, but this is one of the reasons the Constitution establishes impeachment proceedings.And as in Nixon v. United States, Article III Courts cannot hear questions to impeachment proceedings.)

While we still run into the same issues as before, in that the House Representatives has not put forward a Cause of Action, the H. Res. 676 does provide enough guidance to discuss the basics of subject matter jurisdiction.

As anticipated before I read the article by Mr. Denniston, in the next article I will be covering Baker v Carr, 369 U.S. 186 (1962).


Liam '14


Click here for Part I, Part II

Footnotes:

[1] Here is the biography of Lyle Denniston as provided by SCOTUSblog, "Lyle Denniston has been covering the Supreme Court for fifty-six years. In that time, he has covered one-quarter of all of the Justices ever to sit, and he has reported on the entire careers on the bench of ten of the Justices. He has been a journalist of the law for sixty-six years, beginning that career at the Otoe County Courthouse in Nebraska City, Nebraska, in the fall of 1948. He is not an attorney."

To Sue the President (Part II)

This is the second part of an on going series in which I will cover the lawsuit initiated by the House of Representatives again President Obama.

Click here for Part I.Part III

In this article I will be reviewing H. Res.676

On July 30, 2014 H. Res. 676 passed the House of Representatives with a vote of 225 - 201, near completely down party lines.It was introduced on July 22, by Pete Sessions of Texas.

The text of the resolution reads as following:

H. Res. 676
In the House of Representatives, U. S.,
July 30, 2014. 

    Resolved, That the Speaker is authorized to initiate or intervene in one or more civil actions on behalf of the House of Representatives in a Federal court of competent jurisdiction to seek any appropriate relief regarding the failure of the President, the head of any department or agency, or any other officer or employee of the executive branch, to act in a manner consistent with that official's duties under the Constitution and laws of the United States with respect to implementation of any provision of the Patient Protection and Affordable Care Act, title I or subtitle B of title II of the Health Care and Education Reconciliation Act of 2010, including any amendment made by such provision, or any other related provision of law, including a failure to implement any such provision.

    Sec. 2.  The Speaker shall notify the House of Representatives of a decision to initiate or intervene in any civil action pursuant to this resolution.

    Sec. 3. (a) The Office of the General Counsel of the House of Representatives, at the direction of the Speaker, shall represent the House in any civil action initiated, or in which the House intervenes, pursuant to this resolution, and may employ the services of outside counsel and other experts for this purpose.

    (b) The chair of the Committee on House Administration shall cause to be printed in the Congressional Record a statement setting forth the aggregate amounts expended by the Office of General Counsel on outside counsel and other experts pursuant to subsection (a) on a quarterly basis. Such statement shall be submitted for printing not more than 30 days after the expiration of each such period.

There are several interesting issues that creep up in the Resolution. It sets forth that the scope of the civil action is limited to portions of the ACA including action for failing to implement a provision. It also also for multiple actions against the Executive Branch. So the lawsuit(s) is because the President either enforced or didn't enforce the ACA, or both? Ach Nee!

The Office of the General Counsel of the House of Representatives will represent the House, but the resolution allows for the services of outside counsel. How they will pay for outside counsel is at this point anyone's guess. Perhaps they will raise taxes or borrow from China.

So if Speaker Boehner elects to go forward with a lawsuit (or several) based upon the Resolution, we still do not know what he is suing over. There is no Cause of Action with in the Resolution which is highly problematic. There must be a reason for bring forward litigation. The House voted to sue the President without a Cause of Action. It's not good enough to say "we don't like Obama, and we don't like the ACA; therefore lawsuit." It just doesn't fucking work that way.

It frustratingly stupid. It's kind of like if a grad student submitted a midterm paper that was lacking a coherent thesis paragraph... but this is more important. Perhaps it's more like submitting your tax filings but instead of numbers there are emoticons. And damn near every Republican signed off on it.

Hahahahahahahahahahaaaaaaaaaaaahahah stupid bastards....There are also no end dates so if a Republican President is ever in office and fails to implement the ACA or a section thereof and the Democrats regain the house. Wham!

The lack of a Cause of Action in the Resolution does not mean a lawsuit will automatically fail; it is the just an exemplar of how disreputable the 113th House Leadership is.


Liam '14

Part I.Part III

To Sue the President (Part I)

This is the first Part of an on going series in which I will cover the lawsuit initiated by the House of Representatives again President Obama.

Click here for Part II.

In this article I will layout my objectives for the series. I will be covering the legislation passed by the House of Representatives, case law from previous lawsuits against a sitting president, the various documents submitted to the court, and any court proceedings that may occur.

I will also make a greater effort than normal to reach out to other sources for legal opinion on the topic.

From the start of the series I do not believe that a lawsuit will succeed against the President; however, I do want to take this more seriously that what what the circus show deserves, and if I discover a legitimate cause of action, I will acknowledge it. 

From what I currently understand of the situation, the biggest part of the debate is whether or not an Article III court has subject matter jurisdiction to hear the lawsuit in first place. If the court does not have jurisdiction to hear the case, there will be roughly seven more articles to this series. The House Resolution, 3 Court Cases, Cause of Action, A Response, and then a Court Order. So yeah, around seven. Obviously if the Court accepts the suit it will be a longer series.

I will also try to make as few Boehner/Boner jokes as I possibly can and will also limit myself from calling Speaker Boehner, John of Orange, to a minimum.

Liam '14

Part II, Part III

I think America's Scared to have a Man-Date

Holy shit. Lawrence O'Donnell was really right about something. Based on his background, it should come as no surprise that Lawrence does actually seem to be fairly competent with the USC. Perhaps I simply missed the conversation about what the individual mandate actually is, but when I finally looked it up to verify, I was shocked.

Visit msnbc.com for breaking news, world news, and news about the economy

There is no such thing as the individual mandate. Wow. Lawrence is absolutely correct.

According to 26 USC § 5000A(g)(2)(A):

(A) Waiver of criminal penalties

In the case of any failure by a taxpayer to timely pay any penalty imposed by this section, such taxpayer shall not be subject to any criminal prosecution or penalty with respect to such failure.

Under this section of the IRS code, you cannot be thrown in jail for not having health insurance. It is that simple. Well simple is not the right word as the Patient Protection and Affordable Care Act is 906 pages long, and even by legal standards is fairly complex. But not going to jail over failure to pay the mandate tax, maybe someone in the Obama Administration should have explained this point, repeatedly.

26 USC § 5000A(g)(2)(B)(i)-(ii):

(B) Limitations on liens and levies

The Secretary shall not—

(i) file notice of lien with respect to any property of a taxpayer by reason of any failure to pay the penalty imposed by this section, or

(ii) levy on any such property with respect to such failure.

The IRS cannot file a lien or place a levy on a person for failing to pay the penalty created by the individual mandate.  So if Person A doesn't have health insurance, they will be slapped with an approximate $100 tax (fine); however the government cannot put Person A in jail, secure a lien, or place a levy.  Essentially as the law is written, there is no way for the government to get the money.  Therefore, if the individual mandate is the only section of the Patient Protection and Affordable Care Act to be struck down, it would seem consequence free for the Obama Administration. Yes that's right, the mean over-intrusive federal government is going to force you to have health insurance by doing nothing to force you to have health insurance.

Ass-hats.

I think the Obama Administration should  find an attorney and a cartoonist and have them come up with simple explanations for controversial laws, instead of having people just tune into Fox News where they hear stupid shit like death panels.

Liam '12

Freedom Just For Me

The Gayest President

Happy Pride Month.

Georg Büchner once wrote: "Aber  da, da, was liegt hinter dem? Geh, wir haben grobe Sinne. Einander kennen? Wir muessten uns die Schaedeldecken aufbrechen und die Gedanken einander aus den Hirnfasern zerren."  How do we know what another person is thinking.  We would have to crack open their skull and pull out their brain.

Obviously I cannot know what is going through another person's mind, especially if that person's  the President.  But this is what I believe is the background to the President's change of heart on gay-marriage.

I believe that President Obama has lied to the American People. It's en vogue  to call the President a liar.  It's fashionable to call any president a liar actually, but that's a different subject for a different day. Despite his policy positions, he has to be a Socialist-Marxist-Kenyan-Muslim-Secularist-Atheist-Christhating-SOB, because he is lying.

The basic history of Obama goes like this. He has been in the closet for the last eight years.He experimented with supporting Gay Rights in college like so many do, but then was scared back in when he realized  people might be judge him for it. Finally his conscience caught up with him and after he outed himself, he looks like the weight of the world has been taken off his chest.

However I think President Obama was actually lying to the American Public in 2004 when he stated that marriage should be between a man and a woman religious-blah.  His comments were in contradiction to his 8 year old (law professor) statements that he supported ultra-gay marriage. And once again he said it was his personal religious convictions that made him no longer support gay-marriage.

I allude to this position as the law professor position due to the Fourteenth Amendment and how states have historically taken a Cleveland Steamer on it, whenever possible. Selective Inclusion (also known as the Supreme Court releasing a decision every other week from 1868 to Malloy v. Hogan saying the Bill of Rights are applicable to the States) shows that every right on a state level has to be fought for even if the courts have already granted that right or one similar.

In 1967 the Supreme Court issued its decision in Loving v. Virginia, and soon it will grant gay-marriage rights on essentially the same grounds as Loving with Perry v. Brown. Freedom, Penumbras, and Privacy O My.  Privacy is prerequisite for liberty and was etched by uberfascist liberal courts with decisions like Hogan, Loving, Griswold, Eisenstadt, and Lawrence. So as a law professor it would seem obvious that short of a new constitutional amendment gay-marriage is inevitable. Why weren't the freedom loving Conservatives in favor of free loving (or privacy for that matter)? I can think of no greater freedom than choosing who you want to marry, love, and live with.

In 2004 Obama upgraded to Obama 2.0 and became a real politician. Like any real politician his position crapped on the 14th Amendment. His official stance was the issue was separate but equal (because we all know how that worked out the first time).  I can only conclude that this was a position taken because at the time Guns, God, and Gays.  Even at this time he supported Civil Unions thus supporting the freedom to love and live with whoever you want. The moral of the story is apparently politics are stupid and make good rational men make terrible decisions for no real reasons.

Then in 2012 crazy eyes Uncle Biden blurted out in front of the whole family on thanksgiving that President Obama is gay for gay-marriage. Interestingly his policy shift happened 2 months after the Ninth Circuit issued their decision on Perry v. Brown and after it was announced it would be heading for the Supreme Court in the not too distant near.

On a completely random ass ending, I would like to say: let's end the Gay Debate once and for all for every culture in the world.  As far as I know all objections to gay-marriage come from religious institutes.What kind of God is more obsessed with what we shove up our asses than with the 5.5 million children that die each year due to starvation. 83 Million Dollars were spent by backers of Prop 8. I cannot bring myself to write the sentence linking those two thoughts. Grow up.

Liam '12

Freedom Just For Me