Lake Erie Conservative

thoughtful discussion(s) about issue(s)

Posts Tagged ‘Supreme Court’

… If These Arguments are any Indication [#SCOTUS][#Friedrichs v CTA]…

Posted by paulfromwloh on Sunday,January 17th,2016

.. then the public sector unions throughout the country are in big trouble .

.. you would expect that Alito , Thomas , & Roberts would be solid votes to uphold Friedrichs are the likelies , Justices Kennedy and Scalia . I would also count among the possibles one of the liberals , Justice Steven Breyer ..

.. from the arguments , Scalia will be a strong vote to uphold . He may well even get the majority opinion to write , that is if the Chief Justice [Roberts] does not do so himself ..

.. [h/t — Politico.com]..
.. [link] to the blog post article ..

… then there is Tony Kennedy . He literally is SCOTUS ‘ resident ” weather vane , ” that is the swing vote in may of the cases . he may well be a swing vote , but he is still nominally a conservative . One should try to remember that . So , in this case , he is a Yes vote ..

.. in arguments , Breyer was very leery about overriding the current precedent [Abood v Detroit Bd of Ed] . It does not mean that he will not do so . In recent cases , such as Knox v C.T.A , Breyer voted with the conservatives . It is possible , especially if he is given the majority opinion to write , that Breyer will do so again …

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… Victory at the Supreme Court [#Hobby Lobby]…

Posted by paulfromwloh on Thursday,July 3rd,2014

.. yea !! ..

.. Hobby Lobby won its case .

.. for those who do not know , Hobby Lobby Stores is a chain of craft stores . They are closely – held , owned by a family [the Greens] . They encountered ObamaCrapCare , Yikes !! …

.. the ObamaCraps enacted , through the ” Essential Benefits ” package , the contraceptive mandate . It ” mandated ” that insurance policies sold in the United States contained coverage for free contraceptives , including those that could and would be considered abortion – causing drugs [abortifacients] …

.. the Greens [Hobby Lobby] and the Hahns [Conestoga Wood Products] both objected , and they sued in separate actions in separate parts of the country . Conestoga Wood is a wood products company in Lancaster , PA . Hobby Lobby Stores is a nationwide chain of hobby stores , that is headquartered in (I think) Oklahoma . The Appeals Courts reached separate judgements , and the cases were combined for purposes of this case …

.. [h/t — Cornell University Law School Library]..

.. [link] to the opinion …

.. congratulations to the Hahns and the Greens on a hard- fought victory …

.. a few highlights from the case [courtesy of Ed Whelan @ NR Bench Memos]…

Here’s a quick summary of (and a few comments on) Justice Alito’s majority opinion in Hobby Lobby:

1. For-profit corporations are persons protected under RFRA. (Pp. 16-20.)

2. Closely held for-profit corporations are capable of engaging in an exercise of religion protected by RFRA. (It “seems unlikely” that publicly traded corporations would “often” assert RFRA claims, but no need to decide whether they can.) (Pp. 20-31.)

3. The HHS mandate substantially burdens the exercise of religion by the Hahns, the Greens, and their companies. (Pp. 31-38.)

    a. Severe economic consequences.

    b. We need not reach novel claim that companies would be better off forcing their employees into the exchanges. But if we did reach the claim, we wouldn’t find it persuasive. (Pp. 32-38.)

4. We need not decide whether the HHS mandate is in furtherance of a compelling governmental interest. Even if we assume it is, the mandate flunks the least-restrictive-means test. (Pp. 38-40.)

5. The mandate flunks the least-restrictive-means test. (Pp. 39-45.)

6. The least-restrictive-means test is “exceptionally demanding.” (P. 39.)

The most straightforward way for the government to achieve its desired goal would be to pay the cost of the objected-to contraceptives itself. We see nothing in RFRA that supports the argument that the government can’t be required to create entirely new programs in order to comply with RFRA. (Pp. 41-43.)

We need not rely on the option of a new government-funded program because HHS has already demonstrated that it has at its disposal an approach that is less restrictive of religious liberty—the accommodation for religious nonprofits. “We do not decide today whether [the accommodation] complies with RFRA for purposes of all religious claims. At a minimum, however, it does not impinge on the plaintiffs’ religious belief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves HHS’s stated interests equally well.” (Emphasis added.)

 

Commentary: There will be much parsing of this passage. I think that some mandate opponents, worried that a defeat is lying in this victory, will misread this passage. What I think that Alito is saying is that the objection to the accommodation is not to “providing insurance coverage” per se but rather to providing a self-certification that has the consequences of making the certifier morally complicit in the provision of objected-to drugs and devices.* This issue is being, and will continue to be litigated, in the pending suits against the accommodation.

Indeed, it bears highlighting that the majority, in a footnote (footnote 9 on page 10) has offered an expansive reading of the relief that it afforded the Little Sisters of the Poor in the Little Sisters’ challenge to the accommodation: That order means that all “eligible organizations” must “be permitted to opt out of the contraceptive mandate by providing written notification of their objections to the Secretary of HHS, rather than to their insurance issuers or third-party administrators.” Together with the Court’s sound understanding of substantial burden, that proposition ought to provide gives high hopes for a victory to the challengers to the accommodation.

(In his brief concurrence, Justice Kennedy cites the passage above from the majority opinion in stating that the accommodation “does not impinge on the plaintiffs’ religious beliefs.” In context (given that Kennedy joins Alito’s opinion and does nothing more than cite the passage above), I think that it’s clear that he is saying nothing more than Alito is saying: only that the religious beliefs that plaintiffs have set forth in this case against providing insurance coverage wouldn’t be impinged by the accommodation.)

 

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… SCOTUS was busy This Day …

Posted by paulfromwloh on Saturday,June 28th,2014

.. 2 more rulings , 2 more to go ..

.. they also spread out the workload , though , so …

Noel Canning (recess appointments)—Breyer opinion : Obama’s recess appointments unlawful. Narrow ruling : There was no recess . Scalia (joined by Chief, Thomas, Alito) concurred in judgment , on much broader grounds.

Breyer: (1) Recess-appointment authority can be exercised during any recess, intrasession or intersession. (2) Senate is in session when it says it is and is able to transact business. Three days is too short to count as a recess.

Scalia concurrence in judgment: Recess-appointment authority can be exercised only during intersession recesses and only with respect to offices that become vacant during recess.

McCullen (First Amendment challenge to a Massachusetts statute that creates a no-speech zone within 35 feet of an abortion clinic)—Opinion by Chief strikes down statute. Victory for pro-life protesters, but how broad? Court unanimous on result. Separate opinions concurring in judgment by Scalia (with Kennedy and Thomas) and Alito.

.. That is it for now . Last ones of the term [Harris v Quinn , Hobby Lobby] are due on Monday [June 30th] …

.. Unions are not thrilled , especially the public – sector ones …. Public
sector unions have their worst nightmare: Alito is the probable author of forthcoming opinion in Harris v. Quinn . Ouch !

.. the Boss [Roberts] is the likely author of Hobby Lobby . Decent odds for Hobby Lobby , maybe better …

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… the Moral Case for Abortion [pro – lifer] …

Posted by paulfromwloh on Saturday,January 25th,2014

.. has never been weaker .

.. it is murder , plain and simple . It is the taking of a human life , no two bones about it .

.. how can anyone on the pro – death side argue with that ?

.. [h/t — RealClearPolitics]

.. [link] to Brit Hume ‘ s comments . He is a real dandy !

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… This Court Case has the Liberals Scared to Death …

Posted by paulfromwloh on Tuesday,December 24th,2013

.. and they have a likely settlement (it would be my guess) to thank for making the case ” moot ” at the U.S. Supreme Court …

.. otherwise , there were at least 6 votes to shoot down the union ‘ s favourite tactic these days , the neutrality agreement …

.. [h/t the Wall Street Journal] …
.. [h/t Cornell Law Library] …

..[link] to the WSJ editorial [from December 14th , 2013]

..[link] to the law library case description …
(*note* — the Cornell University Law School library site is a real dandy . It is fantastic for so many things legal . If you can contribute , great . feel free to make use of it for your legal needs …)

Does an agreement stipulating that an employer will remain neutral and give access to employee information in exchange for a union’s support of an employer-friendly ballot initiative, constitute a “thing of value” in violation § 302 of the Labor-Management Relations Act; or, must a thing of value be monetary for purposes of § 302?

.. the case is Unite Here Local 335 v Mulhall . It was up before the Supreme Court for oral argument . They were already held , but in December , the case was ” DIGed , ” or dismissed as improvidently granted . Basically , the case was (I think) settled to prevent a unions loss at the Supreme Court . I believe that there were definitely 5 , and probably 6 , votes to win the case . It would have set a disastrous nationwide precedent , taking away one of the union ‘ s favourite tactics , the neutrality agreement .

.. It would also , by extention , neuter any union ‘ s attempt at a corporate campaign against a company . The loss of the neutrality agreement would render the c. c. useless , since the company could agree to nothing , and the union could receive nothing in return . Neither side could do anything to stack the deck . It would empower individual members , as it had before , to sue to stop the tactic .

.. Eventually , a new case will make it to the court . The 11th Circuit case rings out loud as a bell , and sets a pattern that sets the way for a new fact pattern to be brought before the court . This time , the legal representatives will be prepared to block any potential settlement before a decision is reached ..

.. from the WSJ editorial ..

This has large potential implications for Big Labor, which has increasingly sought these neutrality agreements to make it easier to organize a work site. The rights of workers get washed out in such bargains that violate the Taft-Hartley Act’s ban on giving a “thing of value” to help organizing. Let’s hope the Justices find another case soon to make clear that such sweetheart deals are illegal.

.. LEC here again — So do I . I believe that a pattern has been set , and the Right – to – Work folks will have several cases that will come through . I hope that they do …

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… How Dense is Main InJustice …

Posted by paulfromwloh on Thursday,October 17th,2013

.. and with this one , you can add Main MisEducation to the mix …

Race-Based Admissions after Fisher

.. It is depressing that the legality and morality of racial discrimination in education continues to be a contested issue.

English: United States Supreme Court

English: United States Supreme Court (Photo credit: Wikipedia)

.. You have to consider the so – called “guidance” that was issued by the ObamaCraps for universities on the meaning of the Supreme Court’s decision last June in Fisher v. University of Texas. The guidance (and accompanying “Questions & Answers “)predictably reiterates that the administration “strongly support[s] diversity” — including, of course, using discrimination in order to achieve it — but, as a legal matter, this is irrelevant if a school is sued .

.. The fact is that this “guidance” is designed not to help schools follow the law , but to push them to adopt dubious race-based policies that the Supreme Court has warned against . These policies will continue to provoke and prompt lawsuits , but are policies that the ObamaCraps and its political allies stubbornly support. The whole tone of the new guidance is to offer encouragement to schools that want to engage in racial discrimination: The administration promises that it “will continue to be a resource” for such schools. It is as if the FBI offered eager encouragement to state and local police that wanted to engage in racial profiling without violating the law.

.. What is worse though, is that the guidance is probably telling many schools just what they want to hear: Study after study by the Center for Equal Opportunity has shown that universities across the country are only too happy to weigh race very heavily indeed in their admissions. What they end up doing is taking up race as not one factor  , but as the primary factor . Which is not what the Supreme Court  had in mind , or intended .

.. If they (and their lawyers) read the Fisher decision honestly, it ought to make them gulp and reconsider such discriminatory policies. And I should add that, in the run-up to the ruling, it became clear how increasingly unpopular and discredited racial preferences in admissions are, even among liberals who had once supported them. This ought to prompt some serious soul-searching among university presidents on whether “diversity” is really worth the price of racial discrimination.

In Fisher, the U.S. Supreme Court ruled that, before race can be used in university admissions, a university must give “serious, good faith consideration of workable race-neutral alternatives” to achieving the goals that are purportedly being achieved by weighing race in admissions decisions. The high court said that the lower court, on remand, “must assess whether the university has offered sufficient evidence that would prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity.” The Court also said that there must be “a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications.” And: “The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.” A nondiscriminatory approach must be used if it “could promote the substantial interest about as well and at tolerable administrative expense.”

There is certainly enough in this language to justify an aggressive and thorough challenge to universities’ use of race in admissions, and so they should expect as much. Universities must now be able to document their consideration of alternatives to weighing race, including any reason for not adopting such alternatives. If they do not , they will regret it .

..  A particular example would be documentation of how the educational benefits of considering race in admissions would be greater than the educational benefits of considering other, nonracial factors instead. How is education improved by using race, exactly — and how much, exactly, are those benefits of “diversity” enhanced by considering race in admissions, rather than nonracial characteristics that provide actual diversity in backgrounds, such as income or parents’ professions/educational level or geography or age or work experience or whatever?

If a nonracial admissions system would achieve similar benefits and with fewer costs, then the consideration of race cannot be said to have been narrowly tailored to the achievement of those benefits.

More fundamentally, schools must now be able to document why and how race is considered in student admissions and must periodically review and rejustify those considerations. And they must be able to document not only (a) the anticipated benefits but also (b) the possible costs associated with the consideration of race in student admissions at the university — and especially, with regard to the latter, the relative academic performance of members of groups that have received such favorable consideration …

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… Absurdity begets Absurdity …

Posted by paulfromwloh on Tuesday,October 15th,2013

.. at least , now , we get a chance to whack back at the Climate Science lunatics . After the  judicial fraud in Mass V EPA , we get a chance to get even with those idiots . Their attempts at so – called ” global warming science ” have been debunked . The follow on science behind their pursuit of climate change is not far behind . And now , with the new case ,  Utility Air Reg Group v EPA  , we have a chance to hit back …

… from Professor Jonathan Adler , @ the Volokh Conspiracy …

This morning, the Supreme Court granted certiorari in Utility Air Regulatory Group v. EPA concerning the Environmental Protection Agency’s regulation of greenhouse gases under the Clean Air Act. This is quite significant. Although the grant is limited, it focuses on one of the most important legal questions raised by this litigation, and puts some of the EPA’s regulation of greenhouse gas emissions from stationary sources in play.

Harvard’s Richard Lazarus comments:

The Court’s jurisdictional ruling is significant in terms of both what the Court granted and did not grant. The regulations the Court has agreed to review represent the Obama Administration’s first major rulemaking to address the emissions of greenhouse gases from major stationary sources across the country. At the same time, the Court declined to review EPA’s determination that greenhouse gases from new motor vehicles endanger public health and welfare and therefore has left intact the government’s current regulation of motor vehicles emissions to address climate change.

I largely agree, but would go farther in certain respects.

Here’s some background (see also my prior posts here and here). Various states, industry groups, and activist organizations had filed cert petitions – nine in total – and others filed amicus briefs (including yours truly) urging the Court to take this case. The Court was asked to consider many different questions, but only agreed to consider one of its own devising. Specifically, the Court granted six of the nine petitions and agreed to consider the following question: “Whether EPA permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouse gases.” In other words, the Court wants to know whether the EPA was required to apply Section 165 and Title V of the Act to greenhouse gases once it regulated GHGs from motor vehicles. If not, the EPA need not have rewritten these portions of the Act to avoid the “absurd results” of applying these provisions to carbon dioxide.

In my view, the grant is welcome, despite the limitations. Many of the questions for which industry sought review, such as whether the EPA properly considered the relevant scientific research or set permissible standards for vehicular emissions under Section 202 of the Clean Air Act, were not cert worthy. The issue embodied in the Court’s reformulated question presented, on the other hand, most definitely is. While I would have liked the Court to reconsider Massachusetts v. EPA, particularly given that decisions adoption of faulty premises about how the Clean Air Act works, such a grant would have been a heavy lift. The Court does not lightly reconsider its own statutory interpretations. This is still a welcome grant. (That’s my view, however, as I suspect Professor Lazarus disagrees.)

So the Court will not reconsider Mass v. EPA in this case, but the question presented will force the Court to confront the consequences the Mass decision. In particular, this case will force the Court to reconsider the assumption made by Justice Stevens in Mass v. EPA that application of the Clean Air Act to GHGs would not produce absurd results. As we’ve since learned, applying the CAA to GHGs does produce such results, particularly if the regulation of GHGs under Section 202 requires regulation of GHGs under the Clean Air Act’s Title V and PSD provisions. These portions of the Act expressly require the EPA (and state permitting authorities) to regulate more facilities than it could ever hope to have the resources to regulate. The EPA has used this fact to justify rewriting the Act in its regulations, and so the Court’s grant presents the opportunity to question whether the EPA should have at least considered an alternative construction of the Act. In other words, the Court now has the opportunity to force the EPA (and the D.C. Circuit) to adopt an interpretation of the CAA that vindicates the Court’s interpretation in Mass v. EPA by avoiding the absurd results EPA’s approach has generated. We’ll see whether the Court actually takes that opportunity.

… LEC here again — the grant of “certiorari” may well be limited , at least at this time . However , indirectly , it gives the Court a chance to revisit the logic behind the science behind the decision , as well as the law .

.. given the reputation of some times that the link may not work , I wanted to include a copy of a [Clean Air Act as Obstacle (Greenhouse Gas regs)] to Professor Adler ‘ s new paper … oops , wrong [lProliferation of GHG Reg under the OC [Adler]]

.. Remember , a great deal of the “ClimateGate” monkeyshines has come out since 2007 , and in the case of the ObamaCrap antics , since 2009 . The Supreme Court cannot ignore that , and that the lack of effect of the greenhouse gases on our climate is clear and undeniable . The Court used that effect the last time in Mass to help rope in the regulation , now the other side can use logic , science , and the law to “cut the rope …”

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… Tom Delay : Cleared !! [Excellent !] …

Posted by paulfromwloh on Saturday,September 21st,2013

.. Tom Delay got the relief that he was seeking from Texas . The 3rd Circuit Texas Court of Appeals body – slammed the prosecution of Delay in its opinion …

LEC here — Appeals Courts and Supreme Courts generally do not enter in and order acquitals . When they do so , it is a very , very big thing …

.. Their usual modus operandi is to overturn the conviction . The basis that they use to overturn the conviction is then evaluated

Tom Delay

Tom Delay (Photo credit: Wikipedia)

by the relevent prosecutor ‘ s office . It is that office that then makes the decision on whether or not to retry an offender . When a court takes that decision away , it means to me that the prosecutor and his or her office has really , really screwed up . The court has to act to step in to guarantee that the prosecutor does not go off on another fishing expedition in a criminal prosecution …

[h/t — hotair.com]
Appeals court overturns DeLay conviction, acquits him

posted at 12:01 pm on September 19, 2013 by Ed Morrissey

For the second time in the last few years, a high-profile corruption prosecution against a Republican member of Congress has collapsed. This time, it’s Tom DeLay that gets to celebrate, as an appeals court not only overturned his conviction but ordered an acquittal:

A Texas appeals court has overturned the money laundering conviction of former U.S. House Majority Leader Tom DeLay.

The Texas 3rd Court of Appeals said in a 2-1 ruling on Thursday that DeLay had been acquitted. DeLay was sentenced to three years in prison, but his sentence was on hold while his case made its way through the appellate process. …

In Thursday’s tom-delay-appeal-doc, the judges wrote “we reverse the judgments of the trial court and render judgments of acquittal.”

Unless the state appeals the ruling, this means that DeLay cannot be retried on the charges. The court could have ordered a new trial if it restrained its scope to just procedural issues. However, the court apparently believed that the prosecution simply couldn’t make a case for wrongdoing, and as a result took the relatively rare step of overturning a jury’s findings on guilt.

Their opinion makes it clear that the court had little regard for the state’s case:

Given the testimony of the corporate representatives and the undisputed facts that the corporations could lawfully make donations to TRMPAC and TRMPAC could lawfully transfer the corporate funds out of state, the State failed to prove the “applicable culpable mental states” for the donating corporations to support a finding of criminal intent by the corporations. See Ex parte Ellis, 309 S.W.3d at 90. 1

To support its position that the majority of corporate contributions violated the Election Code by not expressly designating a lawful use of their donations to TRMPAC, the State focuses on the following clause from the opinion in Ex parte Ellis: “there is no such thing as a legal undesignated corporate political contribution.” Id. at 88. We believe that the State takes this clause out of context. In that case, the court was addressing constitutional challenges to the Election Code. The clause cited by the State was made during the court’s examination of section 253.100, the section of the Election Code addressing the establishment of a general-purpose committee by a corporation and in response to a possible suggestion made by this Court. …

The State’s primary argument at trial was that the Election Code violation that generated criminal proceeds was the “agreement” between DeLay and others to the combined transfers of funds, i.e., the money swap of soft money for hard money. The State argued in its final argument: “[T]he moment that the decision was made to send the soft dollar check up to Washington D.C. with the intent that it ultimately go to candidates for elective office is the moment that this money became proceeds of criminal activity.” Relying on the use of the word “indirect” 13 in the Election and Penal Code statutes at issue, the State argues that the “agreement” to the combined transactions itself was an illegal contribution and thus the corporate funds sitting in TRMPAC’s bank account at the moment of the agreement became the proceeds of criminal activity. See Tex. Elec. Code § 251.001(2) (defining “contribution” to include “indirect transfer of money” and “agreement . . . to make a transfer”). However, the State fails to explain how the funds already in the bank account resulted from the subsequent money-swap agreement. See Tex. Penal Code § 34.01(4) (defining “proceeds” to include “funds acquired or derived directly or indirectly from, produced through, or realized through . . . an act”). Further, to support this argument, the State disregards the distinction between soft and hard money accounts as irrelevant, arguing: “The fact that the funds were not commingled is simply irrelevant in light of the explicit one-for-one exchange which was negotiated in this case.” But in the context of the campaign finance regulations, maintaining separate, segregated bank accounts for soft and hard money is recognized and accepted as legitimate.

The court also attacked the core of the case, the alleged conspiracy to violate election law, emphasis mine:

We also question the validity of the State’s “agreement” theory. It was not a crime to conspire to violate the Election Code in 2002. See Colyandro, 233 S.W.3d at 870–71, 885. And, even if it was, the evidence does not support a finding that there was an “agreement” to illegally transfer corporate money to Texas candidates. There was no evidence that TRMPAC or RNSEC treated the corporate funds as anything but what they were, corporate funds with limited uses under campaign finance law. Rather, when viewed in the light most favorable to the verdict, the evidence showed an agreement to two legal monetary transfers: that TRMPAC transfer corporate money to RNSEC for use in other states and not in Texas in exchange for RNSEC transferring funds to Texas candidates out of a hard money account. Rather than supporting an agreement to violate the Election Code, the evidence shows that the defendants were attempting to comply with the Election Code limitations on corporate contributions.

But even if that were true, the court ruled, there was no core crime to begin with:

Finally, even if we were to conclude that the corporate donations to TRMPAC or the agreement itself to the series of money transfers violated the Election Code, the State’s charges as stated in the indictment were tied to the transfer from RNSEC to the seven Texas candidates. As stated above, the RNSEC issued the checks to the candidates from a separate, segregated account—a hard money account—which did not include corporate money.

The conclusion? DeLay didn’t commit a crime at all, and the conviction resulted from poor jury instructions:

Based on the totality of the evidence, we conclude that the evidence presented does not support a conclusion that DeLay committed the crimes that were charged. See Williams,235 S.W.3d at 750; see also United States v. Grossman, 117 F.3d 255, 261 (5th Cir. 1997) (concluding that evidence legallyinsufficient to sustain conspiracycount where evidence was legally insufficient to sustain substantive counts forming basis for object of conspiracy); United States 21v. Mackay, 33 F.3d 489, 494 (5th Cir. 1994) (“A conspiracy conviction requires proof of an agreement to commit a crime.”). The fundamental problem with the State’s case was its failure to prove proceeds of criminal activity. We sustain DeLay’s first and second points of error.

Due to our resolution of these two grounds, we do not reach DeLay’s remaining points of error. Because we conclude that the evidence was legally insufficient to support DeLay’s convictions, we reverse the judgments of the trial court and render judgments of acquittal.

=======================================================================================================

Quite frankly, that deconstruction is so complete that it would be difficult to imagine the Texas Supreme Court overturning any of it — and a successful appeal would have to hope that the court overturns all of it, or at least enough to get a new trial. I’d predict that the directed verdict of acquittal will send a strong enough message to dissuade prosecutors from trying it again.

DeLay joins the late Ted Stevens as two members of Congress recently prosecuted for corruption to be later vindicated in appeals to original convictions. William Jefferson, who was prosecuted in the same time frame, lost all of his appeals and will be in prison for at least the next ten years. The man who should be under scrutiny now is Ronnie Earle, whose years-long legal grudge match against DeLay and other Texas Republicans has been thoroughly discredited by the appellate court.

.. LEC here again — I do not know what has become of Ronnie Earle . If  he is smart , he should have left the state of Texas . If he has not , he should prepare to get his sorry rear end dragged into court . Except , this time , he will be in the dock . His law license will be at stake  …

.. for those idiots in the media . It was not just a reversal of the conviction . There was never a crime to begin with , you morons . Read the above , and the legal opinion in the case . Delay was adjudged not guilty , so he cannot be tried again in a court of law again . Ronnie Earle can , however , for misconduct in office , among other charges , and also for violation of Delay ‘ s civil rights . It would be interesting if a U.S. Attorney would take up the case , once a complaint were filed . You can bet the U.S. Department of InJustice will not handle the case . But , they just might pressure any U.S. Atty to not handle the case . Holder and his minions are certainly capable of that …

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… Voter I.D. Laws are Moral …

Posted by paulfromwloh on Tuesday,August 13th,2013

.. and the racial demagogues are wrong . Very , Very wrong .

.. With the Supreme Court decision in Shelby County v Holder , many states that were previously affected by the Votings Rights Act “preclearance” rules are now free and clear to implement much more common – sense voting laws and rules , especially without having to say ” Mother may I “” , especially to Eric Holder ‘ s Department of InJustice . The Justice Deparment normally acts to evenly enforce the law . Under Holder , that has changed almost 180 degrees . If you are a conservative , especially a black conservative , you are going to get screw by the InJustice Department and their goons in the Voting Rights Section .

.. At least , Shelby County defangs that crowd . the preclearance rules under Section 5 of the Voting Rights Act are effectively gone . Not directly , though . Their teeth have been pulled , because the stuff that gives them their punch , Section 4b , was the subject of the case . And the loons lost , big time , and 6 to 3 at the Court . Ouch .

.. Section 3 is still available . However , the old South and other areas are on the same equal footing as all of the other states . No more nannying and ” Mother may I ” , thankfully . The InJustice Deparment must actually prove its case . Also , not in the area of jurisdiction . It is done in D.C. , away from the activistas in the local judiciary . Also , direct and intention evidence of discrimination is required . Disparate Impact bull is not allowed .

.. Nicely done , Governor McCrory ! ..

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… Well , Miz Hillary is back in the Political Arena …

Posted by paulfromwloh on Tuesday,August 13th,2013

.. and , gues what ??

.. It is fun time for the good guys and gals on the Right . Especially when Miz Hillary sticks her nose into a local issue , and also sticks her foot in her mouth in the process . Somebody should remind her that legal id (ie , a driver ‘ s license or (free) state id)) is needed for many everyday common tasks . It is not racisit , or a racial act , to ask for one .

.. Miz Hillary ‘ s comments are racially oriented , and very likely racist themselves . See for yourself …

Hillary Clinton calls for restoration of voter rights suppressed by Supreme Court’s Shelby decision

by Meteor BladesFollow

HIllary Clinton speaking at ABA convention in S.F. 2013. (posted by MB)

Hillary Clinton spoke of the need to restore voting rights taken away by Supreme Court’s Shelby ruling.

In what she later announced would the first in a series of policy-oriented speeches she will deliver over the coming months on the “strains on our social contract,” former Secretary of State Hillary Clinton gave a passionate and wide-ranging address to the attendees of the American Bar Association’s annual convention in San Francisco Monday, telling them of the need to restore the protections of the Voting Rights Act. She excoriated efforts in some states to deal with the “phantom epidemic of election fraud” as a means of keeping minority and younger voters away from the polls.She pointed out that in 2013 so far, more than 80 bills restricting voting rights have been introduced in 31 states. She singled out four states in particular: North Carolina, South Carolina, Florida and Texas.

“Now, not every obstacle is related to race, but anyone who says that racial discrimination is no longer a problem in American elections must not be paying attention.And despite the best efforts of many well-intentioned election officials, discrepancies in resources across precincts and polling stations still disproportionately impact African Americans, Latinos and young voters.” […]

“Unless the hole opened up by the Supreme Court’s ruling is fixed […] citizens will be disenfranchised, victimized by the law instead of served by it, and that progress, that historical progress toward a more perfect union, will go backwards instead of forward,” Clinton said.

The ABA’s House of Delegates approved a resolution Monday urging Congress to take quick action to restore provisions of the Voting Rights Act that the Supreme Court gutted in its Shelby County v. Holder ruling.

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… Fight , Texas , Fight !! ….

Posted by paulfromwloh on Friday,July 26th,2013

.. Good ! It seems that Texas is definitely going to fight back . Now that the tools are better there , the state of Texas should be in much better shape . I cannot predict victory , but they will have a much better chance of it .

.. It seems His Imperial Highness , Eric Holder , wants to go on the attack against the states . Any state will do . He wants to do away with several measures , not limited to , or including Voter I.D. . It may not be limited to that , I believe . Any measure related to voting integrity , or the prevention of voting fraud , such as the purging or cleaning of voter registration rolls . How the Department of InJustice intends to do it , good question ?

.. The Department of InJustice is preparing to take fresh legal action in a string of voting rights cases across the nation, U.S. officials said, part of a new attempt to blunt the impact of a Supreme Court ruling that the Obama administration has warned will imperil minority representation.

The decision to challenge state officials marks an aggressive effort to continue policing voting rights issues and follows a ruling by the court last month that invalidated a critical part of the 1965 Voting Rights Act. The justices threw out a part of the act that determined which states with a history of discrimination had to be granted Justice Department or court approval before making voting law changes.

.. In the coming weeks, Attorney General Holder expected to announce that the Justice Department is using other sections of the Voting Rights Act to bring lawsuits or take other legal action to prevent states from implementing certain laws, including requirements to present certain kinds of identification in order to vote. The department is also expected to try to force certain states to get approval, or “pre-clearance,” before they can change their election laws.

.. “Even as Congress considers updates to the Voting Rights Act in light of the Court’s ruling, we plan, in the meantime, to fully utilize the law’s remaining sections to subject states to pre-clearance as necessary,” Holder said in a speech Thursday morning in Philadelphia. “My colleagues and I are determined to use every tool at our disposal to stand against such discrimination wherever it is found.”

Holder announced that, in a first step, the department will support a lawsuit in Texas that was brought by a coalition of Democratic legislators and civil rights groups against the state’s redistricting plan.

[link] tweets @pjmedia (bpreston) …

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… the Battle of the Titans (@ the Supreme Court)

Posted by paulfromwloh on Tuesday,July 2nd,2013

the Battle of the Titans

High Court to Hear Obama Recess Appointments Case

.. The Supreme Court stepped into an important constitutional dispute Monday between President Barack Obama and congressional Republicans over the chief executive’s power to make recess appointments .

.. The justices said they will review a federal appeals court ruling [Noel Canning  v N.L.R.B.] that found Obama violated the Constitution when he bypassed the Senate last year to appoint three members of the National Labor Relations Board . It is the latest chapter in the partisan political wrangling between GOP lawmakers and Obama over appointments to the labor board and the Consumer Financial Protection Bureau. Republicans want to rein in both agencies ‘ powers.

.. The Constitution does give the president the power to make temporary appointments to fill positions that otherwise require confirmation by the Senate , but only when the Senate is in recess . At issue for the Supreme Court: What constitutes a congressional recess , and does it matter when a vacancy occurs ? The nature of POTUS ‘ current actions, during brief Senate breaks that Congress explicitly said were not formal recesses, is driving the current legal controversy.

.. The case stems from Obama’s decision to fill the three NLRB vacancies on Jan. 4, 2012 , with Congress on an extended holiday break. At the same time, however, the Senate held brief sessions every few days as part of the Republicans’ explicit strategy . The Senate was forced to do so by the House , by not giving its consent to not meeting for more than three  days .  This  gap in metting is  the commonly accepted definition of a ” recess . ” By doing so  ,both chambers would act to not allow Obama  from filling vacancies through recess appointments.

.. He also used a recess appointment to install Richard Cordray as head of the financial protection agency, which the GOP had blocked for a year and a half.

.. Two of the three judges also said that only positions that come open during a congressional recess can be filled through a recess appointment. The court did not address the issue of how short a break can count as a recess . If it stands, the ruling could invalidate hundreds of board decisions, and call into question the legitimacy of regulations issued by the Consumer Financial Protection Bureau, many of which affect the mortgage industry. The NLRB also would effectively be shut down, because a ruling against the administration would leave the board with only one member, and it needs three to conduct business.

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… the Battle of the Titans (in Court) …

Posted by paulfromwloh on Sunday,June 30th,2013

High Court to Hear Obama Recess Appointments Case

.. The Supreme Court stepped into an important constitutional dispute Monday between President Barack Obama and congressional Republicans over the chief executive’s power to make recess appointments .

.. The justices said they will review a federal appeals court ruling [Noel Canning  v N.L.R.B.] that found Obama violated the Constitution when he bypassed the Senate last year to appoint three members of the National Labor Relations Board . It is the latest chapter in the partisan political wrangling between GOP lawmakers and Obama over appointments to the labor board and the Consumer Financial Protection Bureau. Republicans want to rein in both agencies ‘ powers.

.. The Constitution does give the president the power to make temporary appointments to fill positions that otherwise require confirmation by the Senate , but only when the Senate is in recess . At issue for the Supreme Court: What constitutes a congressional recess , and does it matter when a vacancy occurs ? The nature of POTUS ‘ current actions, during brief Senate breaks that Congress explicitly said were not formal recesses, is driving the current legal controversy.

.. The case stems from Obama’s decision to fill the three NLRB vacancies on Jan. 4,2012 , with Congress on an extended holiday break. At the same time, however, the Senate held brief sessions every few days as part of the Republicans’ explicit strategy . The Senate was forced to do so by the House , by not giving its consent to not meeting for more than three  days .  This  gap in metting is  the commonly accepted definition of a ” recess . ” By doing so  ,both chambers would act to not allow Obama  from filling vacancies through recess appointments.

.. He also used a recess appointment to install Richard Cordray as head of the financial protection agency, which the GOP had blocked for a year and a half.

.. Two of the three judges also said that only positions that come open during a congressional recess can be filled through a recess appointment. The court did not address the issue of how short a break can count as a recess . If it stands, the ruling could invalidate hundreds of board decisions, and call into question the legitimacy of regulations issued by the Consumer Financial Protection Bureau, many of which affect the mortgage industry. The NLRB also would effectively be shut down, because a ruling against the administration would leave the board with only one member, and it needs three to conduct business.

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… Thomas Perez is So Busted …

Posted by paulfromwloh on Monday,June 17th,2013

Thomas Perez is So Busted

… and was said in the ’60s , the whole world is watching …

LEC here — I wanted to paste this together , and repost it on my blog , as one unit , with links [] and [] with the great news that Hans announces below

[h/t to pjmedia , and one hell of a lawyer and writer , hans von spakovsky !]

SCOTUS Takes Up Mt. Holly Case

Posted By Hans A. von Spakovsky On June 17, 2013 @ 7:04 am In Politics

The Supreme Court has just granted certiorari in Mt. Holly, NJ v. Mt. Holly Gardens Citizens, so it will hear arguments on the case in the fall.  This is the case I  previously wrote about that involves the questionable  “disparate impact” legal theory that has gotten Assistant Attorney General for Civil Rights (and Obama Labor Secretary nominee) Thomas Perez into so much trouble.  The Court granted review despite a brief from the Solicitor General telling the Supremes that they should not take the case.  No doubt, civil rights groups will now do everything they can (perhaps with the help of the administration) to convince the town of Mt. Holly to dismiss its case before their pet legal theory gets tossed out by the Supreme Court.

LEC again — you can bet that the Supremes are watching this .

[-] the town of Mt Holly  has taken it this far . I strongly doubt that they are willing to settle . Able to settle , yes . Willing , No . Especially with the spotlight this one is going to get .

[-] the pressure that the interest groups and the ObamaCraps are going to put on them will be enormous . They will play hardball , fair or foul , to get the town to settle . However , they need the Court ‘ s permission . No , not the district court , this time .

[-] One thing that this does is that it gets the case out of the hands of the ObamaCraps . They would not and will not dare pull a rerun of what Thomas Perez pulled in the Magner v Gallagher case , out of the 10th Circuit [St. Paul , Mn] . They may want to , but not with even the chance that the chicanery could screw up Cory Booker ‘ s Senate election . Oh , Booker has to run in 2014 . Someone may want to run then , especially if it looks like a strong Republican year , and Christie wins in a blowout , with coattails .

[-] There are at least 4 votes to shoot down disparate impact . I am thinking that there will be at least 6 [Scalia , Thomas , Alito , CJ Roberts , Kennedy , plus either Sotomayor or Breyer ] . Forget about Ginsberg . Also , given Perez ‘ monkeyshines , I do not think that Kagan can participate in the case .

[-] Briefs , especially the amicus briefs , and the arguments too , are going to be World War III . This one is going to be one of the highlights of the next Supreme Court term .

[-] You can forget about Perez getting a confirmation vote for Labour Secretary . There is no way in hell that he will get it , especially with the other cases on Presidential powers on recess appointments pending .

[-] ditto , POTUS ‘ pseudo appointees to the D.C. circuit . The current cast of regular appeallate judges , plus Srnivisian (the new guy , a conservative , of all things) , plus the senior judges (7 or 8 of them) can easily handle the workload .

PJ Media » More Justice Department Chicanery: Thomas Perez and ‘Disparate

Impact’ » Print

More Justice Department Chicanery: Thomas Perez and ‘Disparate Impact’

Posted By Hans von Spakovsky On June 1, 2013 @ 12:00 am In Judiciary,Legal,US

News | 19 Comments

 

One of the administration’s favorite legal theories, “disparate impact,” may get

taken up again by the Supreme Court. Will the administration try to engineer

some kind of payoff to take the issue away from the Court — again?

In June 2012, the town of Mount Holly, N.J., petitioned the Supreme Court to

review the legitimacy of racial discrimination claims premised solely on a

disparate impact theory under the Fair Housing Act. Under this theory, a policy

— such as requiring high credit scores for loans — can be completely neutral,

but if it yields a disparate impact on a particular racial or gender group, an

institution using that policy can be held liable for discrimination. In other

words, an entity can be found to have discriminated even if it didn’t actually

intend to discriminate.

Thomas Perez, the assistant attorney general for Civil Rights at the Justice

Department and President Obama’s nominee to be Labor secretary, has used

disparate impact to extort huge settlements from the financial industry under

the Fair Housing Act (FHA).

Here, Mount Holly is alleged to have discriminated simply because it wanted to

redevelop and rebuild a rundown housing development in a high-crime area where

almost half the residents are black. Thus, the rebuilding plan would have had a

statistically larger impact on black residents than white residents.

The issue of whether a mere disparate impact claim violates the FHA, or whether

the more rigorous standard of intentional discrimination is required was before

the Supreme Court last year. In that case, Magner v. Gallagher, the city of St.

Paul, MN, was accused of violating the FHA because it aggressively enforced the

health and safety provisions of its housing code. Slumlords sued the city,

claiming that enforcement had a disparate impact because the majority of their

tenants were racial minorities.

In other words, they were using the FHA to obstruct the city’s attempt to

improve the horrible living conditions of poor families.

Thomas Perez concocted a quid pro quo deal to have the Magner case dismissed —

even though the U.S. was not a party in the case. At the time, the federal

government was considering intervening in a separate False Claims Act case worth

almost $200 million against St. Paul. The city had received tens of millions of

dollars from the federal government based on what career attorneys within the

Justice Department called a “particularly egregious example of false

certifications” by the city.

Perez told St. Paul that the Justice Department would stay out of the False

Claims Act case if the city withdrew the Magner case that the Supreme Court had

agreed to hear. The city jumped at the deal.

A report from the House Oversight and Government Reform Committee later

concluded that Perez “sought, facilitated, and consummated this deal because he

feared that the Court would find disparate impact unsupported by the text of the

Fair Housing Act.” According to the same report, Perez also attempted to hide

both the deal and his involvement in it.

He even called a key lawyer in the U.S. Attorney’s Office in Minnesota and told

him to make sure there wasn’t “any mention of the Magner case” in the False

Claims Act case files.

Fast forward to the new claim involving Mount Holly: although the U.S. is,

again, not a party to the case, the Supreme Court last October asked the Justice

Department to file a brief advising whether it thought the Court should accept

the case for review.

To no one’s surprise, the brief [1] that Justice recently filed told the Court

it should not take the case. The question of whether disparate impact claims are

available under the FHA “does not warrant review,” it declared. The brief was

filed by Solicitor General Donald B. Verrilli, Jr., and right under his name is

that of Thomas E. Perez.

Verrilli and Perez argue that disparate impact claims are a “reasonable

construction of the statute’s text, structure, and history” and that there is no

conflict in the courts of appeal on this issue. But the brief ends with an

argument you wouldn’t expect from Justice, given Perez’s sub rosa involvement in

getting the Magner case dismissed — especially in light of recent revelations

that he violated federal law and Justice Department rules by using his personal

email account to facilitate the deal.

Verrilli and Perez fault Mount Holly for even raising the issue of whether

disparate impact claims are valid under the FHA. Mount Holly, they write, had

the “opportunity to raise both questions” in the lower courts when the Magner

case was before the Supreme Court,” and therefore can’t bring it up now.

With stunning chutzpah, the government is arguing that Mount Holly should have

been aware that disparate impact was a live issue when review was granted in

Magner v. Gallagher and should have raised the issue in its own case.

This is wrong for two reasons. First, the timeliness of Mount Holly’s claim that

disparate impact does not constitute a violation of the FHA has no relation

whatsoever to someone else’s lawsuit, such as the Magner case. Second, even if

Mount Holly mistakenly thought disparate impact was not a live legal issue when

Magner was before the Supreme Court, Mount Holly would have learned it was a

live issue when the scandal became public over the government’s quid pro quo

deal that bought off St. Paul and caused the city to dismiss the Magner case.

Therefore, the government’s very actions in Magner make the Mount Holly

disparate impact claims in the current case timely.

It should also be noted that while the brief criticizes Mount Holly for not

raising this issue when Magner was before the Supreme Court, it fails to inform

the Court that a senior Justice Department official (whose name is on the brief)

helped get that very case dismissed before the Court could hear oral arguments.

Should we be surprised by any of these convoluted machinations?

Probably not, given what happened the last time disparate impact was being

considered by the Supreme Court. The House report concluded that the quid pro

quo in the Magner case “manipulated the rule of law and pushed the limits of

justice to make” the deal happen.

The Supreme Court should accept the Mount Holly case. And if Justice approaches

Mount Holly with a Magner-esque deal, the city should reject it so the Court can

finally rule on the validity of disparate impact claims.

 

 

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… it is a Barforama …

Posted by paulfromwloh on Wednesday,October 10th,2012

Official photo of John McCain.

… hey , but keep it coming , folks …

… you could have expected some of this already . Mitch McConnell ‘ s victory in his Supreme Court case a number of years ago helped take some of the teeth out of McCain – Feingold , but the Citizens United decision in January of 2010 basically took most , but not all ,  of the rest of them out of it …

… the Super Pacs are doing a dandy job of driving us all nuts . I thought that , for me , 2009 was rough . Ohio had a campaign to legalize casino gambling (which won) , and the two sides spent about $35 million each . Ouch ! And i thought that campaign was obnoxious . Well , that one was a piker , in comparison to this one . the Obama and Romney campaigns are on track to raise about $1 billion each . Wow ! …

… Well , it is ” Everybody and their Sister Sue” time on the campaign trail . All sorts of candidates are advertising now on the t.v.s and radios here in Northeast Ohio , and it is only October 9 . It is only going to  get worse . Much worse . and they have every constitutional and First Amendment right to do it …

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Part 4 — Medicaid

Posted by paulfromwloh on Monday,June 25th,2012

  this part is very esoteric to most folks , but it is quite simple. the ObamaCrapCare Act is seeking to dragoon our states and blackmail them into adding millions of people to the Medicaid rolls, with little (3 years) aid from a Federal Government that cannot afford it.

  Also, in particular many states either have just or are about to get their financial books back in balance, and adding so many people (as the Mother of All Unfunded Mandates) is going to put them effectively into bankruptcy, or pretty close to it.

  If the whole bill (part 3) comes about, then the states will not have to worry, but even if it does, i believe that the Supreme Court will decide on this part of the case, nonetheless. They would not have set things up this way, if they were not planning to make a decision.

  I am not entirely sure, but I think that they will decide (5-4, or 6-3) to strike this part down. Having states meet financial requirements for aid from the feds is one thing, but dragooning them into effective bankruptcy by threating their ENTIRE Medicaid funding is something else .

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