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Author Topic: Issues in the American Creed (Constitutional Law and related matters)  (Read 115204 times)
bigdog
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« Reply #850 on: October 20, 2012, 09:14:49 PM »

This isn't my answer, but might interest you if you've not read it: Holder's letter to Obama requesting the use of executive privilege.

http://www.justice.gov/olc/2012/ag-ff-exec-priv.pdf
« Last Edit: October 21, 2012, 06:21:17 AM by bigdog » Logged
Crafty_Dog
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« Reply #851 on: October 24, 2012, 11:26:13 AM »

 "I'm not sure that I would've been President Obama's nominee if I weren't a woman." --Justice Elena Kagan
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bigdog
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« Reply #852 on: October 24, 2012, 08:55:03 PM »

"I'm not sure that I would've been President Obama's nominee if I weren't a woman." --Justice Elena Kagan

This is probably true. It is also true that many, many, many SC justices wouldn't be or have been on the Court if they didn't met a demographic "requirement." The truth in the statement doesn't mean she is unqualified.
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Crafty_Dog
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« Reply #853 on: October 24, 2012, 11:28:11 PM »

Ture enough. Her thinking about the C. is what does that  angry
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Crafty_Dog
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« Reply #854 on: October 25, 2012, 01:38:40 PM »



http://www.forbes.com/sites/jimpowell/2012/04/29/obamas-plan-to-seize-control-of-our-economy-and-our-lives/
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bigdog
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« Reply #855 on: October 25, 2012, 05:43:35 PM »


The middle is good, and rings (sort of) true. The beginning indicates that he doesn't understand the process that EOs go through prior to issuance.

The end indicates that he can't count.
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Crafty_Dog
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« Reply #856 on: October 25, 2012, 05:51:17 PM »

So Professsor, please flesh it out for us  grin
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bigdog
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« Reply #857 on: October 25, 2012, 06:30:17 PM »

The process includes seeking advice from affected bureaucratic agencies, including the miliatary, say, given the fears addressed in the article. It also is vetted by the OMB for financial considerations. And, by the Office of Legal Counsel for "form and legality." Within OLC several proposed EOs are either significantly altered to conform with the law, or withdrawn because they don't.

As for the last portion, I am aware of 19 cases in which a court overturned an EO. See Schubert, The Presidency in the Courts (361-365) and Howell, Power Without Persuasion (198-201).

One thing he did do a good job on was noting limits without actually overturning an EO (see Obama and Gitmo; and for more details http://cstl-cla.semo.edu/Renka/PRG/PRG_Reports/Spring_2010.pdf 13-15).


The middle is good, and rings (sort of) true. The beginning indicates that he doesn't understand the process that EOs go through prior to issuance.

The end indicates that he can't count.
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Crafty_Dog
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« Reply #858 on: November 15, 2012, 12:17:18 AM »



http://www.theblaze.com/stories/there-is-no-right-to-secede-see-the-letter-where-justice-scalia-shoots-down-idea-of-leaving-the-union/
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DougMacG
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« Reply #859 on: November 15, 2012, 11:12:43 AM »

A 28th amendment specifically authorizing secession for states and/or individuals might be easier to pass and ratify than the next budget deal.

Pondering secession aloud is still legal but dangerous to one's future political prospects.

A political compromise short of secession would be for congress and legislatures to offer opt out plans to individuals, the ability to not have to pay into or receive from a myriad of controversial and inefficient government programs. 

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DougMacG
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« Reply #860 on: November 17, 2012, 02:43:14 PM »


That Scalia is a flaming liberal - like Roberts.   wink

Is there no freedom of association anymore?

The colonists, signers of the Declaration of Independence (and framers) believed they had a right of secession, judging by their actions.

Secession issue was "resolved by the Civil War" - ?

The Civil War was 'resolved' before the passage and ratification of the 19th amendment, the right of women to vote.  Women tend to be anti-war.  Women will not support civil war and America will never (I am told) support a war against women. 

I would like to see a red-blue secessional overlay jurisdictional map involving maximum consent of the governed.  Republicans can tax themselves and pay extra for national defense.  Democrats can tax themselves and pay for welfare and transfer programs.  We could have cooperative agreements (imagine that) where both sides pay for legitimate functions of government.
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G M
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« Reply #861 on: November 17, 2012, 04:07:49 PM »

When, in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the laws of nature and of nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

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DougMacG
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« Reply #862 on: November 21, 2012, 08:57:53 AM »

The Privilege to Speak

The New York Times Co. wants a monopoly on the Constitution.

By JAMES TARANTO 

http://online.wsj.com/article/SB10001424127887323713104578131200617146638.html?mod=WSJ_Opinion_MIDDLETopOpinion

A corporate division has once again exercised its First Amendment rights to argue that corporations don't have First Amendment rights. This time, however, the New York Times Co. claims to have discovered a loophole that protects its First Amendment rights.

Justice Alito

In an editorial today, the Times Co.'s eponymous flagship newspaper answers Justice Samuel Alito, who in a terrific speech last week at the Federalist Society in Washington penetratingly ("speciously," according to the Times) defended the court's 2010 ruling in Citizens United v. Federal Election Commission. That 5-4 ruling struck down portions of two laws that imposed government censorship on political speech by corporations and unions (though they made an exception for "media corporations" such as the New York Times Co. and News Corp., which publishes The Wall Street Journal and this website).

Alito elaborated an argument this column made in January 2010, just after he and his colleagues handed down Citizens United. He noted that many landmark free-speech decisions vindicated the rights of corporations, including two that involved the New York Times Co. Here's the company's response:

    In New York Times v. Sullivan, in which the First Amendment was used to rein in the law of libel, the Supreme Court focused on the "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open." It made almost no mention of the fact that The Times was a corporation. Nor were the free speech rights of a corporation any part of the ruling in the Pentagon Papers case.

Really? The free speech rights of a corporation weren't "any part" of a case styled New York Times Co. v. United States?

As for the libel case, it was similarly styled New York Times Co. v. Sullivan. Leaving out the "Co." is a common journalistic shorthand, but in this case a misleading one. The editorial also omits that Times v. Sullivan concerned a political advertisement, the very sort of communication that the Times insists is not protected by the First Amendment.

At least this time, unlike in its 2010 editorial about which we wrote back then, the Times Co. acknowledges that it had been exempted from the censorship regime it endorsed. "It is not the corporate structure of media companies that makes them deserving of constitutional protection," the Times Co. asserts today. "It is their function--the vital role that the press plays in American democracy--that sets them apart."

Here is how Citizens United, the appellant in the 2010 case, describes its function:

    Citizens United is an organization dedicated to restoring our government to citizens' control. Through a combination of education, advocacy, and grass roots organization, Citizens United seeks to reassert the traditional American values of limited government, freedom of enterprise, strong families, and national sovereignty and security. Citizens United's goal is to restore the founding fathers' vision of a free nation, guided by the honesty, common sense, and good will of its citizens.

Citizens United is a nonprofit advocacy organization, incorporated under Section 501(c)4 of the Internal Revenue Code. The same is true, by the way, of many corporations that oppose Citizens United, including, as we have noted, Common Cause.

Surely advocacy of ideas about public policy plays a "vital role" in democracy. But it isn't clear if the Times Co. thinks 501(c)4 corporations are protected by the First Amendment or not. In its 2010 editorial, the company obliquely opined that Citizens United involved "a narrower, technical question involving the broadcast of a movie that attacked Hillary Rodham Clinton during the 2008 campaign."

In a 2010 interview with this columnist, the great First Amendment lawyer Floyd Abrams--who represented both the Times Co. in the 1971 Pentagon Papers case and Sen. Mitch McConnell, a friend of the court on Citizens United's side in the 2010 case--answered this dodge:

    "Here is a very committed, very conservative entity that does a film attacking then-Sen. Hillary Clinton when she seemed likely to be nominated for president by the Democratic Party," Mr. Abrams says. "I ask myself: Well, isn't it obvious that that sort of speech must be protected by the First Amendment? And then I hear in response to that, 'Well, they could have used a PAC. Or they could have put the film out farther away from the election. Or they could have refrained from taking any money from any corporate grantor.'

    "And my reaction is sort of a John McEnroe: You cannot be serious! We're talking about the First Amendment here, and we're being told that an extremely vituperative expression of disdain for a candidate for president is criminal in America?"

One could draw a distinction between nonprofit corporations and those that "exist to make money," as the Times Co. put it in 2010, and argue, as the Times Co. did only implicitly, that the former are entitled to First Amendment protections while the latter are not. But the Times Co. is a for-profit entity. It would be on the wrong side of that line. Hence the "function" argument.

The court has long recognized a somewhat analogous distinction: between commercial and political speech. The former is protected by the First Amendment, but not as strongly as the latter. If a company, for example, fails to live up to a promise to customers, it can be sued or prosecuted for false advertising. When a politician breaks his promises, voters' only recourse is through the ballot box.

But that is a distinction between types of speech, not types of organizations. The New York Times Co. would be laughed out of court if it claimed a "media exemption" from laws regulating its commercial dealings with advertisers and subscribers. The government may not censor its editorial product (except in very limited circumstances) because it is the type of expression that is entitled to the strongest First Amendment protection.

The Times Co.'s notion that only certain types of corporations are "deserving of constitutional protection" is pernicious. It recasts freedom of expression as a privilege rather than a right. It assigns to the government the authority to determine which corporations are to be favored with the "media" distinction allowing them to engage in political debate.

The Times Co. wants itself and similar corporations to enjoy a monopoly on free speech. The only way to accomplish that is through a regime in which the government effectively licenses the press. That would be an anathema to America's constitutional tradition.
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bigdog
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« Reply #863 on: November 28, 2012, 12:56:58 PM »

http://www.nytimes.com/2012/11/27/us/judges-rulings-follow-partisan-lines.html?hpw

From the artiicle:

A book scheduled to be published in January by Harvard University Press provides the most comprehensive and detailed empirical analysis yet of the role played by ideology and political affiliation in judicial decision making. It is called “The Behavior of Federal Judges,” and it collects and analyzes a daunting amount of data.

Its authors are Lee Epstein, who teaches law and political science at the University of Southern California; William M. Landes, who teaches law and economics at the University of Chicago; and Judge Richard A. Posner of the federal appeals court in Chicago. They conclude that “federal judges are not just politicians in robes, though that is part of what they are.”
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Crafty_Dog
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« Reply #864 on: November 29, 2012, 11:32:54 AM »

"Is the relinquishment of the trial by jury and the liberty of the press necessary for your liberty? Will the abandonment of your most sacred rights tend to the security of your liberty? Liberty, the greatest of all earthly blessings -- give us that precious jewel, and you may take every things else! Guard with jealous attention the public liberty. Suspect every one who approaches that jewel." --Patrick Henry, Speech to the Virginia Convention, 1788
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DougMacG
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« Reply #865 on: November 30, 2012, 11:44:22 AM »

Just in case our limited government zeal becomes so extreme and that our very few and simple laws, taxes and regulations are successfully in place, working as intended, with consent of the governed, and in case Congress is tempted to not meet at all during the year, the constitution requires:

"The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day."

I think the framers envisioned a smaller government than what we got.

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Body-by-Guinness
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« Reply #866 on: December 05, 2012, 08:08:36 AM »

Supreme Court Rules That Temporary Government-Induced Flooding of Private Property Can Qualify as a Taking
Ilya Somin • December 4, 2012 2:51 pm

Today, the Supreme Court issued a unanimous decision in Arkansas Game and Fish Commission v. United States. The case involved a claim by the Arkansas Game and Fish Commission that the federal government’s repeated deliberate flooding of its property between 1993 and 2000 constituted a taking requiring compensation under the Fifth Amendment, which mandates that the government pay “just compensation” for takings. The flooding caused extensive damage to forest land owned by the Commission.

Today’s opinion by Justice Ruth Bader Ginsburg rules that temporary flooding can qualify as a taking at least sometimes, but tells us very little about how to determine whether a given case of flooding qualifies as a taking or not:

We rule today, simply and only, that government-induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection. When regulation or temporary physical invasion by government interferes with private property, our decisions recognize, time is indeed a factor in determining the existence... of a compensable taking....

Also relevant to the takings inquiry is the degree to which the invasion is intended or is the foreseeable result of authorized government action.... So, too, are the character of the land at issue and the owner’s “reasonable investment-backed expectations” regarding the land’s use.... Severity of the interference figures in the calculus as well.

So far as it goes, I think the Court’s decision is clearly correct. For reasons I discussed here, there is no good reason to hold that temporary flooding can never count as a taking. This is especially true if the flooding was deliberate and inflicted permanent damage on the property owner’s land. Temporary physical invasions qualify as takings in many other contexts (e.g. – overflights by aircraft), and there is nothing special about flooding that should lead the Court to create a categorical exception. To the contrary, allowing the government to temporarily flood private property without paying any compensation whatsoever would severely undermine the purpose of the Just Compensation Clause, which is, as a 1960 decision puts it, to “bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.”

Unfortunately, the Court gives very little guidance on how to determine whether a given case of flooding is a taking or not. The opinion lists several factors that might be relevant, but does not explain how many need to be present before a taking can be said to have occurred, or what to do if some factors cut one way and some the other. It also says nothing about how much deference, if any, is due to the government in such cases. The Court does not even address the federal government’s extremely dubious argument that damage inflicted by flooding on downstream owners is categorically excluded from qualifying as a taking, even though the justices expressed great skepticism about this claim at the oral argument. These and other issues will have to be dealt with by the lower court on remand.

I suspect that the justices bought unity at the expense of clarity here. In the meantime, it seems clear that Arkansas Game and Fish Commission is going to result in further litigation in the lower courts, as property owners and government agencies advance competing interpretations of the Court’s vague standards for determing whether a temporary flood qualifies as a taking or not.

That said, the Court did take an important step in decisively rejecting the federal government’s extreme position that temporary flooding can never be a taking. The case is therefore joins Sackett v. EPA as a rare unanimous victory for property rights in the Supreme Court.

UPDATE: In this post, I explained why the Court is applying the Just Compensation Clause to this case despite the fact that it involves the flooding of government-owned land, while the text of the Fifth Amendment specifies that it applies only to “private property.” Under longstanding current Supreme Court precedent, the Takings Clause applies to both private and state-owned land. I have some doubts about the correctness of those decisions, but the Court is unlikely to overrule them anytime soon.

UPDATE #2: Brian Hodges of the Pacific Legal Foundation comments on this post here:

Professor Ilya Somin.... praised today’s U.S. Supreme Court decision in Arkansas Game & Fish Commission v. United States as “a rare unanimous victory for property rights” and “an important step in rejecting the federal government’s extreme position that temporary flooding can never be a taking....”

Professor Somin highlights, however, a couple a paragraphs toward the end of the decision that injected unnecessary confusion into an otherwise clear opinion....

While I agree that the language is unclear, I am not so sure that the quoted passage will cause too much confusion in future litigation. The passage lists, without differentiation, various tests, developed over the years, to determine regulatory and/or physical takings. For example, the Court recites the “intent or foreseeability” and “character of the invasion” tests from Ridge Line, Inc. v. United States (2003) and Portsmouth Harbor Land & Hotel v. United States (1922)—both are tests that have never been applied to regulatory takings....

Although some may be tempted to argue that the Court created a chimera from blended regulatory and physical takings tests, the Court did not intend to do so. Instead, the Court stated that its decision was narrow, “We rule today, simply and only, that government induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection.” And elsewhere, in Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency (2002), the Court advised that it is “inappropriate to treat cases involving physical takings as controlling precedents for the evaluation of a claim that there has been a ‘regulatory taking’ and vice versa.” The upshot being that the tests that control physical invasion takings still control physical takings cases, and the tests that control regulatory takings still only apply in regulatory takings cases.

I continue to believe that the opinion is clear in rejecting the government’s extreme claim that temporary flooding can never be a taking, but unclear as to the standards that determine when temporary flooding is a taking. As Hodges notes, the Court lists a grab bag of relevant factors drawn from both regulatory and physical takings cases. So it is by no mean clear which set of precedents applies here. Of course one can argue that the language listing possible relevant factors is just dictum and that the sole holding is, as the Court puts it, “only... that government induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection.” But if the list of factors is just dictum, that makes the opinion less clear, not more, as lower courts would have even less guidance on the question of how to figure out whether a given case of temporary flooding qualifies as a taking or not.

UPDATE: Robert H. Thomas of the Inverse Condemnation blog rounds up other reactions to the decision here.

http://www.volokh.com/2012/12/04/supreme-court-rules-that-temporary-government-induced-flooding-of-private-property-can-qualify-as-a-taking/
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DougMacG
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« Reply #867 on: December 05, 2012, 07:19:24 PM »

For the previous post in the thread, temporary takings, that is good news.  There was a similar ruling for partial takings, I recall.  Still not overturned is Kelo, the power to take private property to transfer to other private ownership. 
--------------------
A good piece with an unfortunate conclusion, a shell bill successfully gets around the origination requirement??

WSJ     December 4, 2012  By JAMES TARANTO
Too Good to Be True - An ObamaCare challenge that's almost certain to fail.

From BusinessInsider.com we learn of a new legal challenge to ObamaCare--"a challenge that only could have been made after the Supreme Court's ruling" in National Federation of Independent Business v. Sebelius, which upheld most of the Patient Protection and Affordable Care Act:

    The right-leaning Pacific Legal Foundation amended its challenge to the ACA after the Supreme Court upheld the insurance mandate under Congress' taxing powers.

    The group's challenge turns on the Origination Clause in the U.S. Constitution, which requires that bills for raising revenue start in the House of Representatives.

    Problem is, the group argues, Obamacare started in the Senate. . . .

    Of course, it's not entirely clear whether Pacific Legal will ultimately prevail on this reasoning.

We'd say it's almost entirely clear that it will not.

The Origination Clause provides that "all Bills for raising Revenue shall originate in the House of Representatives." In order to prevail, the plaintiff in this case would have to establish both that ObamaCare was a "Bill for raising Revenues" and that it originated in the Senate.

Not every law imposing a tax is a "Bill for Raising Revenues." In the court's most recent Origination Clause case, U.S. v. Munoz-Flores (1990), the court unanimously upheld the 1984 Victims of Crime Act, which imposed "a monetary 'special assessment' on any person convicted of a federal misdemeanor." A six-justice majority held that even though the act raised revenue, it was not a bill for raising revenue:

    The special assessment provision was passed as part of a particular program to provide money for that program--the Crime Victims Fund. Although any excess was to go to the Treasury, there is no evidence that Congress contemplated the possibility of a substantial excess, nor did such an excess in fact materialize. Any revenue for the general Treasury that 3013 creates is thus "incidenta[l]" to that provision's primary purpose."

Pacific Legal contrasts the Munoz-Flores assessment with the ObamaCare mandate tax on the ground that the latter "is more akin to an income tax, whose revenues go to the general treasury and are used for general Government operations."

That is a plausible distinction. But it is also plausible to argue that the revenues from the ObamaCare mandate tax are "incidental" to its primary purpose, which is to encourage people to buy insurance. That Congress did not even write the mandate as a tax would seem to strengthen, not weaken, the argument that its revenues are incidental.

We'd be delighted to see Pacific Legal's lawsuit succeed. But if one assumes that Chief Justice John Roberts adopted the "saving construction" for political reasons, it strikes us as highly unlikely that he would now strike down ObamaCare on Origination Clause grounds when he could sustain it without nearly the level of intellectual gymnastics he employed in the NFIB case.

It's also inaccurate to say that the court's opinion upholding ObamaCare opened the door to an Origination Clause challenge. For the law contains many other taxes--including a Medicare levy on investment income and excise taxes on such things as medical devices and tanning salons--which Congress knowingly enacted as taxes for the purpose of raising revenue. And Congress did, however unrealistically, foresee a surplus. It's still far from clear that ObamaCare was a "Bill for raising Revenue," since its main purpose was to remake the health insurance market. But these other taxes, not the mandate, provide the strongest argument that it was.

Even if we assume ObamaCare was a "Bill for raising Revenue," there's one further problem. Although it's true that the version of the law that was finally enacted passed the Senate before the House, it was, as Pacific Legal notes in its pleading, styled a "House Resolution." Here's what happened (citations omitted):

    In September, 2009, the House unanimously passed H.R. 3590, entitled the "Service Members Home Ownership Tax Act of 2009." The bill would have "amend[ed] the Internal Revenue Code of 1986 to modify first-time homebuyers credit in the case of members of the Armed Forces and certain other Federal employees"; H.R. 3590 had nothing to do with health insurance reform. In November of that year, the Senate "amended" the House bill by gutting its contents, replacing those contents with health-insurance reforms (including the purchase requirement and associated payment), and renaming the bill the "Patient Protection and Affordable Care Act." The Senate's purported amendment resulted in the Affordable Care Act that became law.

This procedural dodge is known as a "shell bill" and is designed precisely to evade Origination Clause challenges. Pacific Legal notes in a press release that "the Supreme Court has never ruled on whether such a gut and switch ploy is constitutional." But the law at issue in Munoz-Flores was enacted in the same way, and one justice argued in a concurring opinion that that was sufficient to pass constitutional muster under the Origination Clause:

    The enrolled bill's indication of its House of origin establishes that fact as officially and authoritatively as it establishes the fact that its recited text was adopted by both Houses. . . . We should no more gainsay Congress' official assertion of the origin of a bill than we would gainsay its official assertion that the bill was passed by the requisite quorum, or any more than Congress or the President would gainsay the official assertion of this Court that a judgment was duly considered and approved by our majority vote. Mutual regard between the coordinate branches, and the interest of certainty, both demand that official representations regarding such matters of internal process be accepted at face value.

That justice was Antonin Scalia, one of the four dissenters in NFIB v. Sebelius. There is every reason to think the Origination Clause will not save us from ObamaCare.
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DougMacG
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« Reply #868 on: December 05, 2012, 07:27:30 PM »

From lawyers who worked on the previous, unsuccessful challenge.  (WSJ excerpt)

The Opening for a Fresh ObamaCare Challenge
By defining the mandate as a tax, one that will not be uniformly applied, the Supreme Court ran afoul of the Constitution.

By DAVID B. RIVKIN, JR. AND LEE A. CASEY

ObamaCare is being implemented, having been upheld as constitutional by the Supreme Court in June in a series of cases now known as National Federation of Independent Business v. HHS. It is becoming increasingly clear, however, that the court took a law that was flawed but potentially workable and transformed it into one that is almost certainly unworkable. More important, the justices also may have created new and fatal constitutional problems.

ObamaCare, or the Affordable Care Act, was conceived as a complex statutory scheme designed to provide Americans with near-universal health-care coverage and to effectively federalize the nation's health-care system. The law's core provision was an individual health-insurance purchase mandate, adopted by Congress as a "regulation" of interstate commerce. The provision required most Americans to buy federally determined minimum health-care insurance, or to pay a penalty more or less equivalent to the cost of that coverage.

Equally important were provisions requiring creation of state-run health-care insurance exchanges (where middle-income earners could obtain the prescribed coverage) and an expanded Medicaid program (also administered by the states) to cover people with incomes up to 133% (later upped to 138%) of the federal poverty level. An income of up to $31,809 for a family of four would qualify for Medicaid. States that failed to join in the Medicaid expansion were threatened with the loss of all federal Medicaid dollars, nearly a quarter of all state expenditures.

In the ObamaCare ruling, the Supreme Court correctly held that Congress could not impose the individual mandate as a constitutional regulation of interstate commerce and that Congress could not constitutionally use its spending power to coerce the states to expand Medicaid. Rather than strike down the law, however, the court construed the insurance-purchase mandate and its penalty as a "tax" on the failure to have health insurance. The justices also interpreted the Medicaid-expansion requirements as optional—permitting states to opt out of these provisions while staying within the traditional Medicaid program. Given that interpretation, the court's majority upheld the statute as constitutional.

The court's determination to preserve ObamaCare through "interpretation" has exacerbated the law's original flaws to the point that it has become palpably unworkable. By transforming the penalties for failing to comply with the law's requirements into a "tax," the court has given the public a green light to ignore ObamaCare's requirements when it is economically beneficial. Law-abiding individuals, who might otherwise have complied with the law's expensive purchase mandate to avoid being subjected to financial penalties, can simply now choose to pay a tax and not sign up for coverage. There is certainly no stigma attached to simply paying a tax, and noncompliance with the law's other requirements—such as those imposed on employers—is arguably made more attractive on the same basis. This effect fundamentally undercuts Congress's original purpose, which was to expand health-care coverage to the greatest number of people, not to improve federal revenues.

Similarly, having reviewed the likely costs and benefits, states are now taking advantage of the court-granted flexibility. Seven states, including Texas, Mississippi and Georgia, have so far opted out of the Medicaid-expansion provisions, and eight (with more certain to come) are refusing to create the insurance exchanges, leaving this to a federal bureaucracy unequipped to handle these new administrative burdens. As a result, a growing number of low-income Americans will be unable to obtain the free or cost-effective insurance that Congress originally meant them to have, although they remain subject to the mandate-tax.

Policy problems aside, by transforming the mandate into a tax to avoid one set of constitutional problems (Congress having exceeded its constitutionally enumerated powers), the court has created another problem. If the mandate is an indirect tax, as the Supreme Court held, then the Constitution's "Uniformity Clause" (Article I, Section 8, Clause 1) requires the tax to "be uniform throughout the United States." The Framers adopted this provision so that a group of dominant states could not shift the federal tax burden to the others. It was yet another constitutional device that was simultaneously designed to protect federalism and safeguard individual liberty.

The Supreme Court has rarely considered the Uniformity Clause's reach, but it cannot be ignored. The court also refused to impose meaningful limits on Congress's power to regulate interstate commerce for decades after the 1930s, until justices began to re-establish the constitutional balance in the 1990s with decisions leading up to the ObamaCare ruling this summer. And although the court has upheld as "uniform" taxes that affect states differently in practice, precedent makes clear that a permissible tax must "operate with the same force and effect in every place where the subject of it is found," as held in the Head Money Cases (1884). The ObamaCare tax arguably does not meet this standard.

ObamaCare provides that low-income taxpayers, who are nevertheless above the federal poverty line, can discharge their mandate-tax obligation by enrolling in the new, expanded Medicaid program, which serves as the functional equivalent of a tax credit. But that program will not now exist in every state because, as a matter of federal law, states can opt out. The actual tax burden will not be geographically uniform as the court's precedents require.

Thus, having transformed the individual mandate into a tax, the court may face renewed challenges to ObamaCare on uniformity grounds. The justices will then confront a tough choice. Having earlier reinterpreted the mandate as a tax, they would be hard-pressed to approve the geographic disparity created when states opt out of the Medicaid expansion. But that possibility is inherent in a scheme that imposes a nominally uniform tax liability accompanied by the practical equivalent of a fully off-setting tax credit available only to those living in certain states. To uphold such a taxing scheme would eliminate any meaningful uniformity requirement—a result that the Constitution does not permit.

ObamaCare was always a poorly conceived and constitutionally deficient statute. The Supreme Court's ruling upholding the law has simply made it worse. In the future, that decision is likely to be seen as a prime reason that the federal courts should judge and never legislate... more at the link.

https://buy.wallstreetjournal.com/offers/html/offerSeAff.html?trackCode=aap5few2
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Crafty_Dog
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« Reply #869 on: December 05, 2012, 08:18:08 PM »

 shocked shocked shocked evil evil evil grin grin grin
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bigdog
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« Reply #870 on: December 08, 2012, 06:18:35 AM »

http://thehill.com/blogs/blog-briefing-room/news/271741-supreme-court-to-hear-2-historic-cases-on-gay-marriage
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bigdog
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« Reply #871 on: December 08, 2012, 10:10:53 AM »

In a related article, "On same-sex marriage, options open":
http://www.scotusblog.com/2012/12/on-same-sex-marriage-options-open/#more-156291


Note the participation of famous conservative attorney Thedore Olsen.
« Last Edit: December 08, 2012, 10:25:16 AM by bigdog » Logged
Crafty_Dog
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« Reply #872 on: December 08, 2012, 12:58:41 PM »

I hope the Court learned the lesson about judicial imperialism from the Roe v. Wade experience. 

The correct decision is that this is a matter for the democratic process.  Whether that should be limited to the States or the Feds should define (due to "full faith and credit" issues) I do not have an opinion at the moment.
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bigdog
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« Reply #873 on: December 08, 2012, 01:36:09 PM »

I think 5-4, Kennedy writing the opinion. In favor of same sex marriage.
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Crafty_Dog
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« Reply #874 on: December 08, 2012, 01:45:41 PM »

You may be right but I hope your prediction to be wrong.

"Intelligence is the amount of time it takes to forget a lesson." (me? I forget!)  It would be profoundly stupid were the court to arrogantly once again commit the sin of hubris despite the near daily reminders of the arrogance and foolishness of the Roe decision.
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« Reply #875 on: December 08, 2012, 02:27:15 PM »

It would be nice if we could extend all rights, all privileges, recognize all relationships, guarantee respect for life, liberty and pursuit of happiness for all without destroying the meaning of bedrock terms like husband and wife, mother and father.

FAFSA (federal financial aid) has already gone to the Parent One, Parent Two designations.   Are the old gender based terms m*ther and f*ther banned by law or removed by bureaucrats for terms terms stripped of half their meaning and all of their uniqueness.  Which one are YOU?  How will you know or how will you decide? 

Family units are fluid.  Maybe we need the federal government to quit recognizing these relationships at all as they lose their meanings.  How would that promote the general Welfare our nation?
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Crafty_Dog
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« Reply #876 on: December 11, 2012, 11:37:45 AM »

Tenth Situation A conservative case against the Defense of Marriage Act
By JAMES TARANTO

More than 40 years after it first declined to take up the question of same-sex marriage (Baker v. Nelson is the answer to the trivia question) the U.S. Supreme Court has done so. On Friday it announced that it will hear two appeals of lower-court decisions in favor of same-sex marriage. One struck down California's Proposition 8, the other a section of the federal Defense of Marriage Act. It seems to us, for reasons we'll explain below, that there is a very strong case against DOMA, which even conservatives uncomfortable with same-sex marriage should consider.

By contrast, the case against Proposition 8, at least as served up to the justices by the Ninth U.S. Circuit Court of Appeals, is a mess. Judge Stephen Reinhardt's February opinion in Perry v. Brown (designated Hollingsworth v. Perry at the high court) is a dazzlingly complicated piece of work with a manifestly political objective. It reminds us of Chief Justice John Roberts's opinion in the ObamaCare case.

As we noted in February, Reinhardt led a three-judge panel that struck down Proposition 8, a 2008 ballot measure that amended California's constitution by defining marriage as an opposite-sex union only. But Reinhardt declined to find a federal constitutional right to same-sex marriage. If the decision is sustained, same-sex marriage would become legal in California, but only there.

What made the Reinhardt ruling seem especially clever, including to us, is that it was a direct appeal to Justice Anthony Kennedy, who is thought to hold the pivotal vote. Reinhardt's opinion, as we noted, "relies almost entirely" on Romer v. Evans, a 1996 Kennedy opinion that struck down an antigay Colorado ballot initiative. The more we think about the analogy, though, the more problematic it is.

Amendment 2 prohibited any governmental agency in Colorado from enacting "any statute, regulation, ordinance or policy" under which "homosexual, lesbian or bisexual orientation, conduct, practices or relationships" would provide a basis for "minority status, quota preferences, protected status or claim of discrimination." That would have nullified ordinances in Aspen, Boulder and Denver that prohibited discrimination on the basis of sexual orientation, and it would have prevented the enactment of future such laws.

California passed Proposition 8 in reaction to a state Supreme Court ruling that interpreted the state's constitution as requiring the recognition of same-sex marriages. Here is how Reinhardt described the analogy between the two measures (citations omitted):

Proposition 8 is remarkably similar to Amendment 2. Like Amendment 2, Proposition 8 "single out a certain class of citizens for disfavored legal status. . . ." Like Amendment 2, Proposition 8 has the "peculiar property" of "withdraw[ing] from homosexuals, but not others," an existing legal right--here, access to the official designation of "marriage"--that had been broadly available, notwithstanding the fact that the [U.S.] Constitution did not compel the state to confer it in the first place.
Like Amendment 2, Proposition 8 denies "equal protection of laws in the most literal sense," because it "carves out" an "exception" to California's equal protection clause, by removing equal access to marriage, which gays and lesbians had previously enjoyed, from the scope of that constitutional guarantee. Like Amendment 2, Proposition 8 "by state decree . . . put [homosexuals] in a solitary class with respect to" an important aspect of human relations, and accordingly "imposes a special disability upon [homosexuals] alone." And like Amendment 2, Proposition 8 constitutionalizes that disability, meaning that gays and lesbians may overcome it "only by enlisting the citizenry of [the state] to amend the State Constitution" for a second time.

The trouble with this analogy is that Kennedy's decision in Romer did not hinge on Amendment 2's withdrawal of "an existing legal right." Rather, its crucial defect was that it singled out homosexuals and put them "in a solitary class":

The amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint. They can obtain specific protection against discrimination only by enlisting the citizenry of Colorado to amend the state constitution.
Romer v. Evans applied only to Colorado because only Colorado had such a amendment on its books. But it seems clear that if another state's voters passed an identical amendment, it too would be unconstitutional even if it were entirely pre-emptive--that is, if the state had no existing laws that the amendment would nullify. Nor would Amendment 2 have been saved had it excepted antidiscrimination ordinances already on the books.

By contrast, Proposition 8 is substantively similar to amendments in many other states, including every state in the Ninth Circuit save Hawaii and Washington. One can make a logical argument, as the trial judge did, that these amendments--indeed, the traditional definition of marriage--violate equal protection. Or one can argue, as the Ninth Circuit's Judge N. Randy Smith did in dissent, that the government has a rational basis for declining to legalize same-sex marriage.

The case for striking down Proposition 8 while leaving other states' similar amendments on the books rests on political logic--on the notion that Californians are "ready" to accept same-sex marriage, while residents of many other states are not. But if that's the argument, why not leave it to Californians to decide via another ballot measure?

The trouble with Reinhardt's approach isn't just that it's too clever by half but that it does violence to the basic relationship between federal and state governments. The U.S. Constitution trumps state constitutions, so that if there is a federal right to same-sex marriage, states are obliged to recognize it. But Reinhardt's decision in effect would empower state judges to make an interpretation of the state constitution irrevocable. There's no basis in the U.S. Constitution for that, and, as Justice Samuel Alito recently observed, there is another amendment after the Ninth.

Enlarge Image


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Associated Press
 
Edith Windsor
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The Tenth Amendment, which protects states' rights, is the strongest argument against Section 3 of the 1996 Defense of Marriage Act, which defines marriage for federal purposes. (Section 2, which asserts pre-emptively that no state is obliged to recognize another state's same-sex marriages, is not under challenge.)

Edith Windsor, a New York resident, married Thea Clara Spyer in Canada in 2007. When Spyer died in 2009, the Internal Revenue Service refused to recognize Windsor as a "surviving spouse" and collected $363,053 in death tax on her share of the estate. In October the Second U.S. Circuit Court of Appeals ruled in her favor, and Windsor v. U.S. is the DOMA case (among many) that the high court agreed to review.

In answering one of the defenses of DOMA, Chief Judge Dennis Jacobs goes to the heart of the states' rights argument (again, omitting citations):

Statements in the Congressional Record express an intent to enforce uniform eligibility for federal marital benefits by insuring that same-sex couples receive--or lose--the same federal benefits across all states. However, the emphasis on uniformity is suspicious because Congress and the Supreme Court have historically deferred to state domestic relations laws, irrespective of their variations.
To the extent that there has ever been "uniform" or "consistent" rule in federal law concerning marriage, it is that marriage is "a virtually exclusive province of the States." As the Supreme Court has emphasized, "the states, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce. . . . The Constitution delegated no authority to the Government of the United States on the subject of marriage and divorce." DOMA was therefore an unprecedented intrusion "into an area of traditional state regulation."
If California has the right to define marriage as it sees fit, why doesn't New York? By the same token, note the tension between Jacobs's acknowledgment that regulating marriage is a state power and Reinhardt's insistence on micromanaging California marriage law.

One way the justices could resolve it, of course, would be by taking the politically explosive step of holding that the 14th Amendment obliges all states to legalize same-sex marriage. Another would be to strike down DOMA, let Proposition 8 stand, and leave it to the states to sort the matter out.

But to let Reinhardt's opinion stand would be an act of political expediency that would leave the law muddled. One suspects that after nearly a quarter century on the bench, Justice Kennedy is cognizant of this risk
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DougMacG
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« Reply #877 on: December 11, 2012, 04:11:18 PM »

One conservative case for gay marriage is that if you accept that some of the population is homosexual, why not encourage every attempt at committed monogamy as we do with heteros?

My beef expressed previously has to do with parenting, and the removal of meanings of  terms like mother and father, and of a man and a woman becoming husband and wife.  Everyone including single people should be able to designate legal things like who should make crucial decisions for them when they become unable.

DOMA is a pretty good example often offered of 'conservatives' arguing against states' rights.  On the other side of the coin is that after we admit most states' rights have disappeared and have been superseded with federal powers over almost everything (grow wheat on your own property?), why should conservatives have to play the political game under a different set of rules?

If the Supreme Court rules unambiguously in favor of states' rights on gay marriage, what liberal causes with unconstitutional federal powers will then be put at risk?
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« Reply #878 on: December 11, 2012, 04:19:45 PM »

An additional variable in the case of DOMA is the "full faith" clause of the C. whereby States must give respect to the acts of other states e.g. driver licenses and , , , marriage?  Thus arguably this becomes a matter for federal action?
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DougMacG
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« Reply #879 on: December 11, 2012, 06:23:36 PM »

An additional variable in the case of DOMA is the "full faith" clause of the C. whereby States must give respect to the acts of other states e.g. driver licenses and , , , marriage?  Thus arguably this becomes a matter for federal action?

That was exactly the justification used in passing it.  But if that is not strong enough to uphold it, what other federal actions should be struck down with it?  Will we be moving in the direction of recognizing states' rights, or just selective recognition depending on the issue.
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bigdog
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« Reply #880 on: December 12, 2012, 11:46:06 AM »

http://themonkeycage.org/blog/2012/12/10/the-dimensions-of-law-and-the-same-sex-marriage-cases/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+themonkeycagefeed+%28The+Monkey+Cage%29

"These two cases will be among the most closely-watched cases of the Supreme Court’s term, and may be among the most consequential decisions it makes this year. When arguments are held in March, there will surely be a large crowd outside of the Court, and Court-watchers and interest groups will surely wait in suspense for the decision in late June. Already, speculation has begun to abound about how the Court will decide these cases, and how individual justices will vote. Much attention is being paid in particular to Justice Kennedy, who is widely seen as the pivotal member of the Court."
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« Reply #881 on: December 20, 2012, 10:06:28 AM »

Crafty, regarding Robert Bork on Rest in Peace:

"Personally I opposed Bork's nomination on the grounds that he did not believe that there is a right to privacy in the Ninth Amendment, but I regarded him as an honorable man."


I think I understand your point and agree on the privacy point but I think your right of privacy would have fared much better with Bork on the court than Kennedy or most of the others who followed.  Bork I think would also have been quite restrained about reading government powers into the constitution as well.

One request:  Could you (or anyone else) please put to words what you believe the text of that widely accepted unenumerated right might be.  It sure seems like a moving target.

Bork was saying in confirmation that Griswold could be overturned by legislature instead of by courts, much like what Roberts said more recently upholding Obamacare.  Is there a right of privacy in health care? 

Kennedy, who followed Bork, told the committee he did believe in a right of privacy.  He found a right of privacy in Lawrence, but went on to concur in Kelo where you can forget about privacy in your home, you don't have a right to live there.  Like the Japanese American internment, maybe the right of privacy is transferable.   The government can tell you where your right of privacy will or will not be. 

Kelo is a property rights case, not a privacy case they say.  Where would you have privacy if not on your own bought and paid for property?    I don't know but not there, see also Wickard v. Filburn.  sad
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« Reply #882 on: December 20, 2012, 01:27:21 PM »

Working from memory, Bork said that there is NO right to privacy because the word "privacy" did not appear in the Constitution.

In my opinion, this is a profoundly wrong reading of the Constitution because it makes the Ninth Amendment meaningless-- which violates statutory interpretation jurisprudence to the effect that the language of a law-- including our supreme law!--should not be read so as to make it meaningless.
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« Reply #883 on: December 31, 2012, 12:27:15 PM »

By a Georgetown Law Prof yet! tongue angry cry

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

Let’s Give Up on the Constitution
By LOUIS MICHAEL SEIDMAN
Published: December 30, 2012



AS the nation teeters at the edge of fiscal chaos, observers are reaching the conclusion that the American system of government is broken. But almost no one blames the culprit: our insistence on obedience to the Constitution, with all its archaic, idiosyncratic and downright evil provisions.

Consider, for example, the assertion by the Senate minority leader last week that the House could not take up a plan by Senate Democrats to extend tax cuts on households making $250,000 or less because the Constitution requires that revenue measures originate in the lower chamber. Why should anyone care? Why should a lame-duck House, 27 members of which were defeated for re-election, have a stranglehold on our economy? Why does a grotesquely malapportioned Senate get to decide the nation’s fate?

Our obsession with the Constitution has saddled us with a dysfunctional political system, kept us from debating the merits of divisive issues and inflamed our public discourse. Instead of arguing about what is to be done, we argue about what James Madison might have wanted done 225 years ago.

As someone who has taught constitutional law for almost 40 years, I am ashamed it took me so long to see how bizarre all this is. Imagine that after careful study a government official — say, the president or one of the party leaders in Congress — reaches a considered judgment that a particular course of action is best for the country. Suddenly, someone bursts into the room with new information: a group of white propertied men who have been dead for two centuries, knew nothing of our present situation, acted illegally under existing law and thought it was fine to own slaves might have disagreed with this course of action. Is it even remotely rational that the official should change his or her mind because of this divination?

Constitutional disobedience may seem radical, but it is as old as the Republic. In fact, the Constitution itself was born of constitutional disobedience. When George Washington and the other framers went to Philadelphia in 1787, they were instructed to suggest amendments to the Articles of Confederation, which would have had to be ratified by the legislatures of all 13 states. Instead, in violation of their mandate, they abandoned the Articles, wrote a new Constitution and provided that it would take effect after ratification by only nine states, and by conventions in those states rather than the state legislatures.

No sooner was the Constitution in place than our leaders began ignoring it. John Adams supported the Alien and Sedition Acts, which violated the First Amendment’s guarantee of freedom of speech. Thomas Jefferson thought every constitution should expire after a single generation. He believed the most consequential act of his presidency — the purchase of the Louisiana Territory — exceeded his constitutional powers.

Before the Civil War, abolitionists like Wendell Phillips and William Lloyd Garrison conceded that the Constitution protected slavery, but denounced it as a pact with the devil that should be ignored. When Abraham Lincoln issued the Emancipation Proclamation — 150 years ago tomorrow — he justified it as a military necessity under his power as commander in chief. Eventually, though, he embraced the freeing of slaves as a central war aim, though nearly everyone conceded that the federal government lacked the constitutional power to disrupt slavery where it already existed. Moreover, when the law finally caught up with the facts on the ground through passage of the 13th Amendment, ratification was achieved in a manner at odds with constitutional requirements. (The Southern states were denied representation in Congress on the theory that they had left the Union, yet their reconstructed legislatures later provided the crucial votes to ratify the amendment.)

In his Constitution Day speech in 1937, Franklin D. Roosevelt professed devotion to the document, but as a statement of aspirations rather than obligations. This reading no doubt contributed to his willingness to extend federal power beyond anything the framers imagined, and to threaten the Supreme Court when it stood in the way of his New Deal legislation. In 1954, when the court decided Brown v. Board of Education, Justice Robert H. Jackson said he was voting for it as a moral and political necessity although he thought it had no basis in the Constitution. The list goes on and on.

===============
Page 2 of 2)

 The fact that dissenting justices regularly, publicly and vociferously assert that their colleagues have ignored the Constitution — in landmark cases from Miranda v. Arizona to Roe v. Wade to Romer v. Evans to Bush v. Gore — should give us pause. The two main rival interpretive methods, “originalism” (divining the framers’ intent) and “living constitutionalism” (reinterpreting the text in light of modern demands), cannot be reconciled. Some decisions have been grounded in one school of thought, and some in the other. Whichever your philosophy, many of the results — by definition — must be wrong.

IN the face of this long history of disobedience, it is hard to take seriously the claim by the Constitution’s defenders that we would be reduced to a Hobbesian state of nature if we asserted our freedom from this ancient text. Our sometimes flagrant disregard of the Constitution has not produced chaos or totalitarianism; on the contrary, it has helped us to grow and prosper.

This is not to say that we should disobey all constitutional commands. Freedom of speech and religion, equal protection of the laws and protections against governmental deprivation of life, liberty or property are important, whether or not they are in the Constitution. We should continue to follow those requirements out of respect, not obligation.

Nor should we have a debate about, for instance, how long the president’s term should last or whether Congress should consist of two houses. Some matters are better left settled, even if not in exactly the way we favor. Nor, finally, should we have an all-powerful president free to do whatever he wants. Even without constitutional fealty, the president would still be checked by Congress and by the states. There is even something to be said for an elite body like the Supreme Court with the power to impose its views of political morality on the country.

What would change is not the existence of these institutions, but the basis on which they claim legitimacy. The president would have to justify military action against Iran solely on the merits, without shutting down the debate with a claim of unchallengeable constitutional power as commander in chief. Congress might well retain the power of the purse, but this power would have to be defended on contemporary policy grounds, not abstruse constitutional doctrine. The Supreme Court could stop pretending that its decisions protecting same-sex intimacy or limiting affirmative action were rooted in constitutional text.

The deep-seated fear that such disobedience would unravel our social fabric is mere superstition. As we have seen, the country has successfully survived numerous examples of constitutional infidelity. And as we see now, the failure of the Congress and the White House to agree has already destabilized the country. Countries like Britain and New Zealand have systems of parliamentary supremacy and no written constitution, but are held together by longstanding traditions, accepted modes of procedure and engaged citizens. We, too, could draw on these resources.

What has preserved our political stability is not a poetic piece of parchment, but entrenched institutions and habits of thought and, most important, the sense that we are one nation and must work out our differences. No one can predict in detail what our system of government would look like if we freed ourselves from the shackles of constitutional obligation, and I harbor no illusions that any of this will happen soon. But even if we can’t kick our constitutional-law addiction, we can soften the habit.

If we acknowledged what should be obvious — that much constitutional language is broad enough to encompass an almost infinitely wide range of positions — we might have a very different attitude about the obligation to obey. It would become apparent that people who disagree with us about the Constitution are not violating a sacred text or our core commitments. Instead, we are all invoking a common vocabulary to express aspirations that, at the broadest level, everyone can embrace. Of course, that does not mean that people agree at the ground level. If we are not to abandon constitutionalism entirely, then we might at least understand it as a place for discussion, a demand that we make a good-faith effort to understand the views of others, rather than as a tool to force others to give up their moral and political judgments.

If even this change is impossible, perhaps the dream of a country ruled by “We the people” is impossibly utopian. If so, we have to give up on the claim that we are a self-governing people who can settle our disagreements through mature and tolerant debate. But before abandoning our heritage of self-government, we ought to try extricating ourselves from constitutional bondage so that we can give real freedom a chance.

Louis Michael Seidman, a professor of constitutional law at Georgetown University, is the author of the forthcoming book “On Constitutional Disobedience.”
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« Reply #884 on: December 31, 2012, 04:13:33 PM »

You'll see this theme more as things move "forward". Disarm the people, the constitution is meaningless....
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DougMacG
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« Reply #885 on: January 06, 2013, 11:53:04 AM »

The publishing of the names and addresses of the gun owners makes me come back to this question, what is the right of privacy?

Confirming what Crafty posted about Robert Bork is this: "Many originalists, including most famously Judge Robert Bork in his ill-fated Supreme Court confirmation hearings, have argued that no such general right of privacy exists."
http://law2.umkc.edu/faculty/projects/ftrials/conlaw/rightofprivacy.html

Bork was extreme in this view and was not confirmed.  My question to any and all: put to words the best we can, what is our right of privacy? 

Answered two ways, what right of privacy is protected now by at least 5 and maybe 9 Justices.  Reaching further, how should it be defined for those of us inclined to support an even greater protection of our privacy?

Is there a right to not tell the government about your gun purchases and holdings?  Is there a right that if you do tell them that the information can only be used for law enforcement investigations, and beyond that is protected as private?  Is there a right to not tell the government about your healthcare finance choices?  (Guess not.)  Is there a right to tell the U.S. Census Bureau nothing more than how many live in your household?  Is there right to not carry and show ID on the street if you are not buying liquor or doing anything wrong?  Is there a right to not be filmed or if filmed to not have your image used for anything more than the security purposes of the filming either in private establishment or public place?  The questions go on and on with no definition.

Seems to me that the 'right of privacy' is something we all step on quite freely whenever it doesn't fit with our other objectives.
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« Reply #886 on: January 06, 2013, 12:21:24 PM »

Excellent post Doug.  May I ask that you post it on the Privacy/4th Amendment thread?
===========================
The Ninth Circuit Earns a Merit Badge in San Diego The liberal appellate court wisely overrules a lower court's decision to boot the Boy Scouts from public land.

by MARK PULLIAM The San Diego-Imperial Council of the Boy Scouts of America got an early (and unexpected) Christmas present from the Ninth Circuit Court of Appeals on Dec. 20. It came in the form of a unanimous, 41-page decision reversing a 2003 district-court ruling that the City of San Diego had violated the federal and state constitutions by leasing city property to the Boy Scouts on the same terms as it routinely does to many other nonprofit organizations. Amazingly, in the 2003 decision Judge Napoleon Jones ordered the Scouts evicted from San Diego's Balboa Park, where they had maintained a presence since 1918.

Barnes-Wallace vs. Boy Scouts of America has been a much-followed case, and not just in San Diego. Represented by the ACLU, two couples (one couple who are agnostics and the other lesbians) sued the council and city in 2000 claiming that the leases were unconstitutional—because the Boy Scouts disapprove of homosexuality and require Scout members to profess a belief in God. In the three-judge panel's opinion last month, however, the Ninth Circuit unanimously ruled that the leases did not confer an unconstitutional benefit on a religious organization.

Why was the Ninth Circuit decision so unexpected? Because the appeals court has a reputation as one of the most liberal in the nation, and the decision it was reviewing meshed nicely with liberal views concerning sexual preferences and the separation of church and state. If any court was going to disregard controlling Supreme Court precedents—such as the 2000 Boy Scouts of America v. Dale decision, which held that the Boy Scouts have a First Amendment right to exclude homosexuals—it would have been the Ninth Circuit.

The panel that decided Barnes-Wallace included two judges appointed by Democratic presidents: William Canby by Jimmy Carter, and Marsha Berzon by Bill Clinton. Judge Berzon was openly skeptical of the Boy Scouts' legal position at oral argument.

To make matters more disheartening for the Boy Scouts, the case had been pending in the Ninth Circuit for almost a decade. The most recent round of oral arguments took place in June 2011, 18 months before the decision. This created the impression that the panel was reluctant to issue what it knew would be a controversial decision.

In addition, soon after Judge Jones issued his 2003 decision, the city decided to settle with the plaintiffs. San Diego agreed to pay the plaintiffs almost $1 million for attorneys' fees and not to assist the Boy Scouts in their appeal.

Abandoned by the feckless San Diego City Council and facing delays and hostile questioning in court, the Boy Scouts could have been excused if they uttered their motto, "Be prepared," with a certain fatalistic gloom. While the Scouts were allowed to remain on the leased property pending the outcome of the appeal, they were ready for the worst.

Yet the Ninth Circuit overturned Judge Jones's decision in its entirety, holding that there is "no evidence that the City's purpose in leasing the subject properties to the Boy Scouts was to advance religion, and there is abundant evidence that its purpose was to provide facilities and services for youth activities."

And how about this for common sense: "There is no dispute that the Scout defendants primarily provide camping, water sports, and other outdoor youth activities at Camp Balboa and the Youth Aquatic Center that are typical of a secular camp facility."

As the father of two Eagle Scouts, and as a former Scout leader, I can only imagine the relief and vindication that the Boy Scouts must feel in light of the Ninth Circuit's ruling. The Scouts were being ousted from facilities that they built and in which they had invested millions of dollars. They were forced to expend hundreds of thousands of dollars on attorneys' fees, which could have gone toward scouting programs. A decade of uncertainty was debilitating to the Scouts and, in hindsight, wasteful and unnecessary.

The Ninth Circuit's decision should bolster the Boy Scouts'—and the public's—faith in the rule of law. Justice was finally done, but it was long overdue.

Here's a suggestion: Maybe the city should ask for the return of its nearly million-dollar settlement from the plaintiffs and donate it to the Scouts. The gesture wouldn't make up for all the Scouts have gone through, but it would at least show the kids that grown-ups can behave honorably.

Mr. Pulliam is an attorney who spent many years as an adult volunteer with Troop 506 in La Jolla, Calif. He now resides in Austin, Texas.
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bigdog
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« Reply #887 on: January 14, 2013, 09:05:43 PM »

http://www.nytimes.com/2013/01/15/us/clarence-thomas-breaks-silence-in-supreme-court.html?partner=rss&emc=rss&_r=0

"One of the abiding mysteries at the Supreme Court is why Justice Clarence Thomas has failed to say a word in almost seven years of arguments. On Monday, when he finally broke his silence, the mystery was replaced by a riddle: Just what did Justice Thomas say?"
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Crafty_Dog
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« Reply #888 on: January 18, 2013, 07:51:26 PM »


http://www.heritage.org/constitution/#!/articles/1/essays/71/state-bill-of-attainder-and-state-ex-post-facto
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bigdog
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« Reply #889 on: January 20, 2013, 08:45:34 PM »

http://www.upworthy.com/if-corporations-are-people-then-lets-go-ahead-and-really-make-them-people?c=cp2
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Crafty_Dog
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« Reply #890 on: January 20, 2013, 10:58:27 PM »

Oy vey.
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« Reply #891 on: January 26, 2013, 01:55:33 PM »

Word on the street is that senators would favor this nominee.

http://www.thedailybeast.com/newsweek/2010/04/28/a-mirror-to-obama-s-self-image.html
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bigdog
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« Reply #892 on: January 26, 2013, 02:04:36 PM »

As you are no doubt aware, Obama's NLRB recess appointments were struck down as unconstitutional (see http://online.wsj.com/article/SB10001424127887324039504578263772492524536.html). A few thoughts:

1. This is interesting. http://fpc.state.gov/documents/organization/50801.pdf
2. Please note the discussion of Evans (mostly pages 7-16).
3. This might prove to be intercircuit conflict of the sort the SCOTUS loves to answer.
4. The Office of Legal Counsel (historically, not simply under Obama) has a decidedly different take on the president's recess appointment power than does the court decision of yesterday.
5. Given the long history of recess appointments, I wonder what the reaction to a USSC decision severally curtailling the power would be. Are we looking at another Chadha case in which the Court's opinion is ignored?
« Last Edit: January 26, 2013, 07:38:16 PM by bigdog » Logged
Crafty_Dog
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« Reply #893 on: January 26, 2013, 06:47:14 PM »

What were the facts and holding of the Chada decision and how was it ignored?
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Crafty_Dog
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« Reply #894 on: January 27, 2013, 01:34:19 PM »



http://www.breitbart.com/Breitbart-TV/2013/01/27/CBS-Runs-Segment-Calle-Lets-Give-Up-On-The-Constitution?utm_source=BreitbartNews&utm_medium=facebook
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Crafty_Dog
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« Reply #895 on: January 27, 2013, 01:43:24 PM »

Obama's Abuse of Power
An appeals court says his recess appointments are unconstitutional..
 
President Obama has shown increasing contempt for the constitutional limits on his power, and the courts are finally awakening to the news. A unanimous panel of the D.C. Circuit Court of Appeals ruled on Friday that the President's non-recess recess appointments are illegal and an abuse of executive power.

On January 4, 2012, Mr. Obama bypassed the Senate's advice and consent power by naming three new members of the National Labor Relations Board and appointing Richard Cordray to run the Consumer Financial Protection Bureau. Other Presidents have made recess appointments and we've supported that executive authority.

But here's the Obama kicker: He consciously made those "recess" appointments when the Senate wasn't in recess but was conducting pro-forma sessions precisely so Mr. Obama couldn't make a recess appointment. No President to our knowledge had ever tried that one, no doubt because it means the executive can decide on his own when a co-equal branch of government is in session.

In Noel Canning v. NLRB, a Washington state Pepsi bottler challenged a board decision on grounds that the recess appointments were invalid and that the NLRB thus lacked the three-member quorum required to conduct business. The D.C. Circuit agreed, while whistling a 98 mile-per-hour, chin-high fastball past the White House about the separation of powers.

In the 46-page opinion, the three-judge panel said that "not only logic and language, but also constitutional history" reject the President's afflatus. The Federalist Papers refer to recess appointments expiring at the end of the following session of Congress, the court explained, so it stands to reason that recess appointments were intended to be made only when the Senate is in a recess between sessions, not any time the Senators step out of the Capitol.

"An interpretation of 'the Recess' that permits the President to decide when the Senate is in recess would demolish the checks and balances inherent in the advice-and-consent requirement," wrote Chief Judge David Sentelle for the court, "giving the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction. This cannot be the law."

Judge Sentelle added, in a clear warning to the lawyers who let Mr. Obama walk out on this limb, that "Allowing the President to define the scope of his own appointments power would eviscerate the Constitution's separation of powers."

In a particular surprise, two of the three judges also ruled that recess appointments are only allowed to fill vacancies that arise during the time the Senate is in actual recess. This has not been the recent practice, and it means that Presidents could not wait, say, until a recess in December to appoint a controversial replacement for a Secretary of State who resigned in October.

The court nonetheless makes a plausible case based on the text of the Constitution, government practice in the decades after ratification and legal precedent. Mr. Obama's imperial overreach has invited the courts to re-examine the Constitution's Appointments Clause and tilt the balance of power back toward the Senate.

Meantime, the ruling potentially invalidates dozens of NLRB decisions since the illegal recess appointments were made. A similar mess occurred in 2010 when the Supreme Court ruled in New Process Steel v. NLRB that some 600 decisions made by the NLRB without a three-member quorum were invalid.

The decision also means that Mr. Cordray has no authority to run the consumer financial bureau, which has been busy issuing thousands of pages of regulations since he was illegally imposed in the job. Mr. Obama renominated Mr. Cordray this week, which is an insult to the Senate and after this ruling to the Constitution too.

One question is whether Mr. Cordray can legally keep accepting his paycheck. Especially as a former Attorney General in Ohio, he ought to resign for having agreed to play along as a constitutional usurper.

White House spokesman Jay Carney criticized the unanimous decision Friday, which is consistent with the President's sense of constitutional entitlement. Mr. Obama decided last year he could selectively enforce the immigration laws, exempting certain young people even if Congress hadn't passed the Dream Act. We support the Dream Act but not his unilateral way of imposing it.

Mr. Obama has also signaled his intention to govern as much as possible by stretching the legal bounds of regulation and executive orders. The D.C. Circuit ruling is thus a particularly timely warning that while Mr. Obama was re-elected, has most of the press in his pocket and is popular with 52% of the public, he's subject to the rule of law like everybody else.
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DougMacG
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« Reply #896 on: January 27, 2013, 02:52:34 PM »

Obama's Abuse of Power

And I read in 'other media' that his was a rogue action of a bunch of Republican appointed judges.

Had Obamacare been struck down, Fast and Furious prosecuted, unilateral EPA rulings struck down etc., by now we would see a clear pattern of abuse.

What the hell do we need a National Labor Relations Board for anyway?  Aren't employers and employees all consenting adults capable of freely entering in contracts?
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DougMacG
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« Reply #897 on: January 28, 2013, 12:34:24 AM »

I finally took the very painful step of reading the Obamacare decision in its entirety, a part of my life lost to invasive government that I will never get back.  Everyone should have been required to read it before the last election IMHO as that election was about the selection of Supreme Court members and it was about the question of keeping versus repealing Obamacare at the political level.  Would anyone like to discuss the Court decision at this late date?  I admit coming into this with a strong bias against it.

The decision has 4 main parts.  Chief Justice John Roberts, former conservative, was the deciding vote, upholding for reasons different than the 4 so-called liberal members also voting to uphold the law.  Paraphrasing Roberts, if you can find a way to uphold a law then you do that and he did.  He found a way to construe a mandate as a tax even though the supporters of the bill said and wrote explicitly the opposite.  His view is quite easily refuted in the dissent IMO.

Justice Ginsburg wrote the main pro-Obamacare opinion.  I found her legal opinion to be mostly a political opinion in favor of the legislation (flawed IMO), starting off with the premise that the function of the legislation is to lower costs and pointing to nothing in it that does that.  She explains it is about the need to pay somehow for at least minimum emergency services but the bill is not at all argued to be about simply paying for minimum emergency services.  The Ginsburg opinion could just as easily been written by Nancy Pelosi or White House staff.  Paraphrasing badly, she argues that legislation that clearly goes FAR beyond any previous federal government power in precedent is supported in precedent in the sense that we are always expanding federal powers to keep up with the needs and times.

The main dissent I found to be rambling, unclear and repetitive.  Four 'conservative' justices seemed so blown away by the big expansion of government power that they could not point exactly to why, how or where it violated the constitution, a formerly limited powers document.

Last was an additional short dissent by Justice Thomas where he feels a need to add in dissent that he would also overturn many previous expansions of the Supreme Court definitions of Commerce Clause powers if other Juistices were so inclined.  No one joined that opinion.

My view as an opponent is that the weak arguments of the four liberals was entirely predictable.  The interpretation of Chief Justice Roberts is shocking.  Either he is smarter than everyone else in America to find and take a completely solo view or he completely lost it here under the historic pressure.  Worst to me was that the main arguments I would make against the legislation were never made by the lawyers in opposition or by the Justices in dissent.  Put simply by this layman, Obamcare is not a enumerated power and it STOMPS ALL OVER some very obvious unenumerated rights:  a) I have or had before this legislation a right of choice to procure healthcare services like with all other products and services, as needed, by paying a listed or negotiated fee for service price and terms payment option. b) I had the right to choose a plan that offers a different array of service and cost levels than than that very chosen by the federal government in this legislation.  Now I don't.  And c) I had a right of privacy regarding all these arrangements.  Why, how and where (I guess I know when) did I lose my right to not disclose to the government my personal financial arrangements for healthcare products and services.  The provider may be required in tax law to report revenues as captured but as far as I know that's it.  The income tax amendment allows the government to know my income and tax it, and that's it.  I don't know any situation where I am required to take or disclose every available deduction or expense.  The comparison to car insurance by some was a complete non-starter.  For one thing it was states acting individually and no one ever lost the right after the insurance mandate to ride with someone else, walk or stay home without penalty.  With this you most certainly did.
« Last Edit: January 28, 2013, 12:46:22 AM by DougMacG » Logged
bigdog
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« Reply #898 on: January 28, 2013, 04:41:21 AM »

http://themonkeycage.org/blog/2013/01/27/recess-is-over/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+themonkeycagefeed+%28The+Monkey+Cage%29

More on the recess appointment, court decision, and Chadha gets a turn at the end of the article.
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Crafty_Dog
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« Reply #899 on: January 28, 2013, 10:43:59 AM »

BD et al:

"Actually the court went much farther than merely holding that the Obama appointments override the Senate’s prerogative to decide for itself when it is in recess. Indeed, the opinion turns on an allegedly emphatic difference between the Senate being in recess, and “the Recess of the Senate” envisioned in Article II, Section 2:3"

Despite the author's snideness in response to this point, this makes perfect sense to me.  It is the contrary ("Let's recess until tomorrow" and then the Prez makes an appointment)  that is illogical.

With regard to your post of the 26th, I staggered through about half of it then gave up-- why so much weight given to AG opinions? He is but an employee of the executive branch , , ,

This issue was discuessed at some length on the roundtable portion of the Bret Baier's Special Report the other day.  BB and Charles Krauthammer were quite clear that it was Senator Harry Reid who began the practice in question here, and that, unlike Obama, President Bush respected the Senate's power to declare whether it was in session or not.  The one trying to break new ground here was Obama.


Doug:

I applaud your effort in reading the whole damn thing.  grin I find your discontent with the quality of the main dissent interesting.   OTOH I am on my way out the door and have not the time at the to re-enter the lists on this issue at the moment.
« Last Edit: January 28, 2013, 10:46:45 AM by Crafty_Dog » Logged
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