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

Sunday Morning Slander

.... I just don't know what to write as this story is flat out infuriating. It somehow manage to push out a story about an AG who is "gratified" that a gay couple cannot get divorced, because a court ruled they weren't married by that state's definition of marriage. It also pushed out a story about a former CEO who was booted  from his corporation essentially for not going along with a scheme to drain the company of all of its resources while cutting labor costs and raising prices on consumers.

So yes, this one is special. And from Florida, of course.

Mary Elizabeth Williams of Slate did a fantastic job putting all the information together (in order spare the family any possible further grief I have removed their names):

[...] was only 42 years old when he died last month, after grappling for four years with the rare disease amyloidosis. His family, including his mother [...] wanted him to be remembered at the family church in Florida where she was baptized. But the day before the service, [the mother] was standing at her son’s casket during his wake when she got word from New Hope Missionary Baptist Church in Tampa. She says they told her that would be “blasphemous” to proceed with the funeral and that they were canceling it – because [the deceased] was gay.

Just to clarify and not that it really matters; however amyloidosis, which regularly appeared as a possible solution to nearly every disease on the show House, is a autoimmune disorder (or more specifically a group of disorders) that causes an excess build up of certain type of protein in the bone marrow. It can lead to attacks on the heart, kidneys, liver, spleen, nervous system and digestive tract, possibly leading to organ failure and death. Carry on:

New Hope’s pastor, T.W. Jenkins, says he only learned that [the deceased] was gay when congregation members saw a mention of the man’s surviving husband in his obituary — and called Jenkins to complain. [The deceased] and his husband [...] were together for 17 years before they married in Maryland last year.

I struggle to think of anything less classy. I know the tale of Antigone is not Christian in origin, but denying funeral rites is the kind of bullshit that led previous cultures to fear divine wrath. As a man who is not religious, even I understand the thought process which would lead one to believe in divine judgement against someone denying funeral rites. It takes a particularly heartless and terrible human being to refuse a basic level of compassion to the grieving and a utter lack of empathy bordering on psychopathic. From my experience funerals are about the living, not the dead. Respect the feelings of the living. 

And once again, way to go T.W. Jenkins, you stupid, ignorant fuckhead. You have managed to reduce a man's life down to a sexual act, which apparently is his only defining feature. Let's ignore the fact he had been with the love of his life for over 17 years. Let's ignore the obvious grieving of family torn by tragedy. Let's ignore every quality that made him a human being, because he had sex with a man. T.W. Jenkins you are loathsome piece of shit.

I'm tired of this shit. It makes me feel awful writing this. I wish the family well and offer any condolence that I can, which may is no where near enough. 

Liam '14

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

Obscenity on Trial Part VI

This is Part VI in a series on One, Inc. v. Olesen, which dealt with obscenity laws.

Click here for Part I, Part II, Part III, Part IV, Part V

In this part I will be focusing on the modern jurisprudence in relation to obscenity. In the United States, court turn to the Miller Test to define whether or not a work is to be considered obscene. 

Prior to the Miller Test, the definition of obscenity more or less was non-existent as there were over 30 obscenity trials between 1966-1972, all with different standards. As previously discussed, the Roth Test had the most weight to it; however it was a deeply flawed test due to its incompleteness.

The effect of the Miller Test are that it clarified obscenity, liberalized obscenity laws, and reduced the number of obscenity cases.

To understand the effects of the Miller Test, it's necessary to under what it is.The Miller Test on obscenity can be found in the holding of Miller v. California, 413 U.S. 15 (1973):

a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest,

(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and

(c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. If a state obscenity law is thus limited, First Amendment values are adequately protected by ultimate independent appellate review of constitutional claims when necessary.

For a material to be obscene it must fail all of the three prongs of the test.

The first prong of the Miller Test is the Roth Test verbatim. It establishes who determines obscenity (average person), which standards (contemporary community), what material (ones with the purpose of giving a man a stiffy.)  My Black's Law Dictionary  is away from me at the moment, but a common definition of prurient is "that which incites lasciviousness or lust."

The second prong of the Test establishes that the obscene material must depict or describe sexual content as defined by the appropriate state law.

And thirdly it establishes that the material must be taken as a whole, and whether the material has relevant redeeming factor such as artistic, political or scientific value. The third prong is interesting as it is a check on the second prong, as it  makes sure that the state law isn't overly stringent.

Prong three is where the test becomes revolutionary.

The Miller Test, as it is stated, makes it easy enough for the adult film industry to tailor their material to fit the test. Films and naughty magazines simply need to mascaraed as art. I think the pizza delivery man's penis was a metaphor for the internal conflict of modern social conditions and  between the internal, animalistic drives of a rugged individualist with lube.

I posted the following video to YouTube which goes further into the circumstances of Miller v. California. It's perhaps a bit cheeky and the production quality isn't the greatest, but I recommend watching it if you are still interested in the matter.

I want to reemphasize that I am not a apologist for the Miller Court. I think obscenity generally is an unwarranted burden on free speech. What I respect about the Miller Test is that it improved the situation, and hopefully our legal structure will continue to protect artist from obscenity charges. But every once in a while a trigger-happy prosecutor will still unjustly target a pornographer on obscenity charges in a wave of conservative fervor.


Liam '14

Click here for Part I, Part II, Part III, Part IV, Part V

Sunday Morning Slander

This week was short and I haven't noticed much in the way of news. So I punching down, so to speak, by focusing on this story that appeared on Rawstory.com written by Eric W. Dolan:

Students in a freshman biology class in Atlanta’s Grady High School were shown a PowerPoint presentation that linked evolution to Satan, abortion, divorce, racism, and homosexuality.

The Grady High student newspaper, the Southerner, reported that Anquinette Jones used the PowerPoint presentation to teach the theory of evolution to her students during a freshman biology class last spring.

One slide in the 52-slide presentation included an illustration that shows creationism and evolution as two sides in a war between good and evil. Creationism is shown to be from Christ, while evolution is from Satan. The illustration suggests evolution is the driving force behind euthanasia, homosexuality, pornography, abortion, divorce, and racism — social ills that are all defeated by creationism and Christianity.

My bullshit detector is wobbling a bit right now. I don't think anyone could be this fucking dumb and the primary source is a high school newspaper... so yeah... not to denigrate high school students...

Ok, I found another source, which actually shows and links to the primary sources. Uggh.. The article written by the high school students is actually well written and appears to be factual... uggh.. my faith in humanity is both downgraded by the stupidity of a biology teacher and yet bolstered by great journalism that gives me hope for the future.

So let's march on.

One slide in the 52-slide presentation included an illustration that shows creationism and evolution as two sides in a war between good and evil. Creationism is shown to be from Christ, while evolution is from Satan. The illustration suggests evolution is the driving force behind euthanasia, homosexuality, pornography, abortion, divorce, and racism — social ills that are all defeated by creationism and Christianity.

So... uggh deep breath... find my happy place... slide... Ok, you are trying to get people to accept creationism in the middle of showing why and how evolution works. And to a bunch of 15 year old boys, you say pornography drives evolution. You don't understand 15 year old boys, do you? 15 year old boys are porn-freaks.

In fact in the middle of your presentation one of the students was either watching a porno on their iPhone or drawing naked ladies in their notebook.

But after looking through the slideshow it appears the rest of the material was fairly solid. So unless the teacher undercuts the rest of the slideshow with a stupid verbal rant everything's fine:

Jones told the Southerner that the PowerPoint presentation originated with the Atlanta Public Schools system. But students told the paper that Jones had brought up creationism and criticized evolution in her biology class before.

“She always had random comments about [creationism],” student {Name Redacted} told the Southerner. “If someone would ask if we were going to learn evolution, she was like, ‘No, I don’t teach that.’”

“[I] have gay parents, and [the cartoon] said that evolution caused homosexuality and it implied that to be negative, so I was pretty offended by it,” another student, {Name Redacted}, said.

Happy place... happy place... happy place... Ok think of the positives on the story. Students are demanding accountability from educators.

Students are taking the initiative and become active and engaged in democracy and their future. 

And it seems that the students understand why this circumstance is wrong, or at least some of the students seem to understand why this is wrong.  

Liam '14

A Gay Reading of... Miller v. California

I finally found sometime to do something on Miller v. California.

I will be publishing a write up in a little while to cap off the Obscenity on Trial Series.

Enjoy if you can.


Liam '14