Tribal Gun Control Dishonesty

The Virginian Federalist has closely reported on the DC Gun Control case coming for oral argument in the Supreme Court this month. Harvard Law School Professor Laurence Tribe has an opinion piece published in the Wall Street Journal Tuesday. When a rational argument is made on the merits of this case by a well known and respected constitutional scholar like Professor Tribe, I would tend to give careful attention to the argument made. I expected to be able to do that for this opinion piece. I was extraordinarily disappointed to discover the Professor Tribe not only failed to provide a carefully crafted argument, but instead descended into sophistry and dishonest characterization of the underlying facts of the case.


Professor Tribe writes:

The lower court's decision in this case -- the D.C. Circuit Court of Appeals found the District's ban on concealable handguns in a densely populated area to be unconstitutional -- went overboard. Under any plausible standard of review, a legislature's choice to limit the citizenry to rifles, shotguns and other weapons less likely to augment urban violence need not, and should not, be viewed as an unconstitutional abridgment of the right of the people to keep or bear arms.

That is the Professor alleges that a complete ban on handguns (and other guns, but we will get to that in a moment) would not abridge the individual right to keep and bear arms which he claims he finds in the second amendment. As noted in the Attorneys General amicus brief (supported by Virginia thanks to Attorney General Bob McDonnell) in this case "An individual right that can be altogether abrogated is
no right at all."

In his opinion, Professor Tribe choses to describe the DC law as a ban on concealable handguns. In fact, as described in the amici brief, the District's ordinances collectively prohibit the possession of any functioning firearm in one's own home. To describe this, as Professor Tribe does, as a ban on concealable handguns in patently dishonest.

As a side note, as reported in the Volokh Conspiracy, Professor Tribe previously indicated that he wanted to take a more central role than just writing an amicus brief against the District, and a more central role would indicate a desire to be co-counsel with the plaintiff. His position now to overturn the decision of the Court of Appeals and support the District is a flip flop so huge that it makes John Kerry look decisive and unwavering.


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NY Times: Constitutional Limits on Government are Unconstitutional

In an October 30, Editorial Observer column "Honey, They Shrunk the Congress", arguing for Congress to assert more authority over the executive and judicial branches, Adam Cohen makes this incredible assertion about the Congress:

It confirmed Janice Rogers Brown to the powerful United States Court of Appeals for the District of Columbia Circuit even though she had suggested that much of the legislation passed during the New Deal — including the Social Security Act — was unconstitutional.

Cohen's point here was that the congress should have asserted its power by denying judicial confirmations to anyone who believes the constitution places limits on - the congress!

Perhaps this statement points to the source of his erroneous thinking.

Article I, which describes Congress’s powers, is the Constitution’s first, longest and most generously worded article. It gives Congress a wide array of specific powers, but also broad authority to pass laws that bring to life “all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.”

I would not describe, as Cohen does, Article I as giving Congress a wide array of specific powers but a limited set of enumerated powers. In his dowdification of Section 8, he chooses to leave off its preamble:

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers...

I would assert the powers of Congress must be restored to the bounds established in the constitution. Only then will the power of government be limited to what the people provided by consent.

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Saturday afternoon musings: Three Independent Branches of Government

Today's Washington Post carries commentary from Jacob Sullum on "The gap in Mukasey's testimony" Sullum highlights an issue that has been a simmering controversy throughout the current Bush administration. The controversy is often framed in terms of the president's power, independent of congress to protect national security, or exercise the role of the commander-in-chief over enemy combatants. The most recent iteration stems from the confirmation hearing testimony of Judge Michael Mukasey to be attorney-general.

Sullum's commentary notes that Senate Judiciary Committee Chairman Patrick Leahy's attention was especially attracted to one part of the Mukasey's testimony:

Since the law "starts with the Constitution," he said, the president need not obey a statute that interferes with his inherent constitutional authority "to defend the country."

As quoted by Sullum, Leahy found this to be

"a loophole big enough to drive a truck through,".

But is this really a loophole?

Let us consider a hypothetical.

Article II Section 2 of the constitution grants to the president the power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

Now let us suppose the Congress were to pass over the President's veto a law requiring the concurrence of two-thirds of the Senate in any pardon issued by the President before it would become effective. Let us call this the Pardon Powers Act.

Would the President be subject to such a law? The congress is granted in the constitution no power to pardon, or oversee pardons issued by the president in exercising his exclusive authority. However the Congress may impeach the president and remove him from office if he violated the Pardon Powers Act. The Supreme Court might declare the Pardon Powers Act unconstitutional and any pardon issued by the president without congressional approval valid, but that would not prevent the Congress from effecting the President's removal.

Which gets us back to Mr. Leahy and Judge Mukasey. While the words "to defend the country" do not appear to be in the constitution, I will take this to mean the sum of the executive power invested in the president and the president's power as Commander in Chief of the Army and Navy of the United States, and the Militia of the several states when called into the actual service of the United States.

The Congress has been granted power to declare war, raise and support Armies, provide and maintain a Navy, regulate the land and naval Forces, and make rules concerning captures on land and water. It also has power to appropriate funds for the national defense or not.

Outside of these powers, the congress is not given other powers to say, proscribe the use artillery instead of mortars in a battle, define the speed of advance of a column of ships or tanks, or determine the location of prisoner detention relative to the forward edge of the battle area. If it established such a law, would the President be obliged to obey it? Would it make a difference? Could the Congress ultimately enforce its will by removal of the president? Hypothetical questions. Any hypothetical answers?

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Kid's Health Care vs. Pork: The Prevaricatory Porcine

In my Wednesday post Kid's Health Care vs. Pork: The Pig Wins, I provided a partial list of items in the feeding trough for Virginia. The list continues below the fold. Having finally gotten to the end of the Department of Labor, Health and Human Services, and Education, and Related Agencies Appropriation Act, 2008 , I noticed this piece of rotting gristle inserted by the Appropriations committee into their porridge of festering pork:

Committee on Appropriations bases its authority to report this
legislation from clause 7 of section 9 of article I of the Constitution
of the United States of America which states:

No money shall be drawn from the Treasury but in consequence of Appropriations made by law
Appropriations contained in this Act are made pursuant to this specific power granted by the Constitution.

On analysis this appears to not be any authority at all but a prohibition. It is embedded in a series of prohibitions including suspension of the writ of habeas corpus, bills of attainder, and no grants of title or nobility.

The powers of the Congress are defined in Section 8, not Section 9. Is the House Appropriation Committee being obtuse, disingenuous, or prevaricatory here?




75,000 to Beth EI House, Alexandria, VA for social services and transitional housing for formerly homeless women and their children

100,000 to Every Citizen Has Opportunities, Inc., Leesburg, VA for services to disabled individuals

250,000 to Helping Children Worldwide, Herndon, VA to assist students and families

100,000 to Mary's Family, Orlean, VA to develop a respite program for Winchester-area special needs families

150,000 to Jewish Social Service Agency, Fairfax, VA for a naturally occurring retirement community demonstration project

150,000 to Shenandoah Area Agency on Aging, Front Royal, VA for a model group respite center for persons with Alzheimer's disease and dementia

70,000 to Marymount University, Arlington, VA for a project to provide health screenings, referrals and health education at a nurse managed health center for minority populations

300,000 to St. Luke's Community Free Clinic, Front Royal, VA for activities focused on adult hypertension and dental care

150,000 to An Achievable Dream, Inc., Newport News, VA for education and support services for at-risk children, which may include teacher stipend scholarships

250,000 to Fairfax County Public Schools, Fairfax, VA for language programs in Franklin Sherman Elementary School and Chesterbrook Elementary School in McLean, Virginia

200,000 to Fairfax County Public Schools, Falls Church, VA for emergency medical services curriculum development

250,000 to Eastern Shore Community College Industrial Maintenance Program, Melfa, VA for curriculum development

200,000 to Institute for Advanced Learning and Research, Danville, VA for professional development for teachers in the field of nanotechnology

250,000 to Radford University, Radford, VA for a study of the feasibility of establishing a graduate school in the medical sciences

280,000 to University of Virginia Center for Politics, Charlottesville, VA for the Youth Leadership Initiative

200,000 to Corporation for Jefferson's Poplar Forest, Forest, VA for expansion of exhibits and outreach

150,000 to George C. Marshall Foundation, Lexington, VA for research activities


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Upside Down on SCHIPS

DemocracyUpsideDown has a post today calling for an SCHIP veto overide vote by Senator Warner. Whether Warner votes for or against over ride, the bill is likely to pass in the Senate where it passed on August 2 68 to 31, two votes more than two-thirds, Warner voting yea. It is in the House that Senator Steny Hoyer believed the over ride would not be successful. But the argument for over ride is worth examining. I hope I have enough space for it.

Every child and every adult deserves the right to health care.

Yep, that's it, cause they deserve it. I deserve a vacation. Please call your Member of Congress and get them to pass me one.

Is deserving a right the same as having one? Is the right to health care a right like free speech, freedom of religion, freedom of assembly, freedom from search and seizure without warrant? Must the federal government provide everything I have a "right" to? Or is the United States a constitutional republic where the people have granted only limited and enumerated powers to the branches of government, with the right to give us what we deserve not among those enumerated powers? I don't think we will find cogent answers to those questions at DemocracyUpsidedown.

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Webb Supports Unconstitutional DC Member of Congress Bill

In a failed motion to cut off debate on a bill to give the District of Columbia a seat in the House of Representatives, Senator Jim Webb voted with the failing side yesterday. The bill ignores the plain language of Article I Section 2 of the Constitution:

Section 2. The House of Representatives shall be composed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature.

Given the plain meaning of the constitution limiting members to be chosen by people of the states, and the District of Columbia not being a state, either Senator Webb is unfamiliar with the constitution, is unable to read it, or doesn't care what it says. Perhaps he will enlighten his constituents which particular failure he is claiming as an excuse for acting against the constitution he is sworn to uphold. Did our Virginia Representatives do any better when it was their turn?


01 Davis R Absent
02 Drake R No
03 Scott D Yes
04 Forbes R No
05 Goode R No
06 Goodlatte R No
07 Cantor R Absent
08 Moran D yes
09 Boucher D Yes
10 Wolf R Yes
11 Davis R Yes

Apparently Representatives Scott, Moran, Boucher, Wolf and Tom Davis are as constitutionally disabled as Senator Webb. The role call vote is here.
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No Religious Test

John F. Kennedy said in 1960 that he believed in a Presidency that is "a great office that must be neither humbled by making it the instrument of any religious group, nor tarnished by arbitrarily withholding it, its occupancy from the members of any religious group. I believe in a President whose views on religion are his own private affair, neither imposed upon him by the nation or imposed by the nation upon him as a condition to holding that office." Although Kennedy's speech to the Greater Houston Ministerial Association was sufficient to blunt attacks against his Catholicism in 1960, 47 years later, Governor Mitt Romney finds his religion being used against him as he runs for the Presidency.

Whether as individuals we endorse Governor Romney's candidacy or not, the members of the editorial board of The Virginian Federalist stands united in our conviction that neither his church nor that of any other candidate for office should be regarded as an issue in the election, in accordance with the explicit guidance of Article VI of the Constitution, that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” That statement is an admonition to all of the nation's citizens to demand in candidates for office all manner of qualification but none based on religion.

We may rightly, and of necessity, judge the character, responsibility, intelligence, grace, and fitness of those who propose to serve in public office. We may consider political and economic philosophy, education, and experience at home and in the world at large. We may review in depth and at length the written and spoken record. We may not, if we respect the constitutional framework of our free nation, cast off Article VI’s explicit and necessary stricture, forbidding from our consideration any religious test.

In our history we have been served in the office of President by one Jehovah's Witness, one Catholic, two Congregationalists, two Dutch Reformed and two Quakers, three Disciples of Christ, four Unitarians and four Baptists, five Methodists, ten Presbyterians and eleven Episcopalians. It is a remarkable diversity covering a broad base of the religious thought within the nation. As the full history of the American nation is not yet fully realized, the breadth of the diversity which supplies able men to fill her civil offices is not exhausted.

There are a number of ways in which media outlets, both new and old, have fed into the criticisms of Governor Romney’s religion and contributed to establishing an implicit religious test for office. In at least one of the major televised Republican debates, the brief introductory biographies of each candidate included a listing of their religion. In articles, posts, and television news reports about Mitt Romney, reporters regularly mention Mormonism, and yet there is no such emphasis on the religions of the other candidates, apparently because their religions are presumed to be normal and acceptable. More explicitly, interviewers have challenged Mr. Romney to explain and defend various tenets of his faith, including his interpretation of the Second Coming. Having never seen other candidates asked to explain their stance on infant baptism or their interpretation of the Book of Revelations, I can only interpret these types of questions as being directed specifically against the religion of Governor Romney. Whether simply for political advantage or out of deep felt and considered reflection, many Americans have made comments or raised questions about whether any adherent to Mitt Romney’s church can be a proper candidate for President. All who have done so should reflect again. They fail to honor the Constitution in so doing and make of themselves fit targets for criticism and rebuke.

It is then the position of the editorial board of The Virginian Federalist that we will not suffer or permit the erection of a religious test for our officials and we will call in solemnity on all others to share this commitment with us. We are bound by Oath to support and defend the Constitution of the United States. In doing so, as the apostle Paul admonished, we seek after whatsoever things which are true, whatsoever things are honest, whatsoever things are just, pure, lovely, of good report, virtuous and praiseworthy. If we seek the same in others we will find the type of leader this nation needs. Read More. . . .

Webb's Deployment Limits Bill Resurrected in House

Jim Webb's bill to keep troops at home longer between deployments was withdrawn when the votes to end debate could not be garnered. A somewhat similar bill was passed by the House August 2nd. I previously analyzed the Webb bill as bad legislation in an earlier post. Seems only fair to skewer the resurrected bill as well and point out its unconstitutional nature.

Ellen Taucher (D-CA10) introduced HR 3159 "Ensuring Military Readiness Through Stability and Predictability Deployment Policy Act of 2007. The bill passed the House by a 229 to 194 vote.

The votes of the Virginia delegation were:

Davis, Jo Ann S., R- 1st Not voting
Drake, Thelma D., R- 2nd Nay
Scott, Robert C. "Bobby", D-, 3rd Aye
Forbes, J. Randy, R-, 4th Nay
Goode Jr., Virgil H., R-, 5th Nay
Goodlatte, Bob, R-, 6th Nay
Cantor, Eric, R-, 7th Nay
Moran, Jim, D-, 8th Yea
Boucher, Rick, D-, 9th Yea
Wolf, Frank, R-, 10th Nay
Davis, Tom, R-V, 11th Nay

The Tauscher bill, unlike Webb's original which included Operation Enduring Freedom, further limits its application to just Operation Iraqi Freedom. It also conflates units and individuals into the same definition but goes on to limit unit deployments. Since this is not an amendment to the authorization bill, if passed by the Senate and signed by the President (somewhat unlikely), it would be permanent law, not expiring with the authorization.

One of my objections here is that the bill is targeted only at the current operations in Iraq. If we are serious about ensuring the deployment fit and rested military personnel to combat why limit the concern to Iraq (or Iraq and Afghanistan as Webb proposed)?

No amendments were offered by our delegation or others to address these points.

Secondly, the bill could easily be mooted by renaming the Operation. Given the attacks on the 'evil' nature of the Bush administration, I doubt some Democrats would see this simple expedient as being beyond the administration.

But finally and most importantly I believe such a bill is unconstitutional. The Congress has the power to declare war. The Congress has the power to raise an Army. The constitution did not give the Congress the power to decide which soldier moves from which place to which place and when.

Thelma Drake made the argument cogently in her floor speech during the debate:

I will make this statement, that the Constitution grants Congress the
power to do three things with regard to war: One of them is to declare it, and that is clear; the second one is to raise an Army and a Navy and, by implication, an Air Force, and that is clear; and the third thing is to fund it. But there is nothing in this Constitution that says that we have the authority to overrule the Commander in Chief, nor to micromanage a war. Nor are there any 535 generals that are somehow or another empowered within article I or any other article of the Constitution it.

So when the gentleman says that it is a constitutional responsibility of Congress to conduct foreign policy, I would ask, where in this Constitution do you find that? I find that all vested in the powers of the President, where he appoints ambassadors, he sets foreign policy. Yes, with the advice and consent of the Senate on the confirmation, but it is the President's foreign policy, it is the President's State Department, and it is the President's military to command.

When we deviate from that, we put ourselves in the condition where our Continental Army was back before we established this Constitution. They knew what was wrong. The Continental Congress was trying to fight a war by consensus, and that is why we have a Commander in Chief, and we must adhere to that.

If you really want to give some rest to these troops, don't tell the President what he has to do. He is doing all he can to give our troops all the rest he can.

I just came back from there. Expand this standing, active duty military so that they can get some rest. Don't pull them out of the field. And if you are sincere about this, don't limit it to Operation Iraqi Freedom. Expand this globally. If you really mean it, they get tired wherever they are, in Afghanistan, Iraq and wherever they happen to be on the globe.

The President knows that. He cares about these troops. I looked him in the eye last week. He is doing everything he can. Everyone is a volunteer, and everyone is a volunteer not just for the military but for this mission. And you cannot separate your support for the troops from support of the mission. You must support their mission. If you are going to ask them to put their lives on the line for us, then you stand for their mission. The least we can do is wait for General Petraeus' report.

Regardless of the merits of reducing troops recycling to combat, this is sloppy unconstitutional legislation at best and more likely vacuous political grandstanding. Representatives Boucher, Moran and Scott owe us more than that.
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Webb votes 4th Amendment Betrayal?

Raising Kaine has posted Senator Webb's statement on his vote for amendments to the Foreign Intelligence Surveillance Act (FISA). The Raising Kaine post has attracted more than 85 comments, rants and whines, and many howls of betrayal at Webb's 'cave to the administration'. It would seem prudent then to see just what is in S 1927. and the related 4th Amendment issues.

S 1927 is fairly brief, and much of it is procedural, who makes certifications, to whom, when, time periods, review time frames and reports. The heart is contained in an new Section 105B of the FISA.

Sec. 105B. (a) Notwithstanding any other law, the Director of National Intelligence and the Attorney General, may for periods of up to one year authorize the acquisition of foreign intelligence information concerning persons reasonably believed to be outside the United States if the Director of National Intelligence and the Attorney General determine, based on the information provided to them, that--

`(1) there are reasonable procedures in place for determining that the acquisition of foreign intelligence information under this section concerns persons reasonably believed to be located outside the United States, and such procedures will be subject to review of the Court pursuant to section 105C of this Act;

`(2) the acquisition does not constitute electronic surveillance;

`(3) the acquisition involves obtaining the foreign intelligence information from or with the assistance of a communications service provider, custodian, or other person (including any officer, employee, agent, or other specified person of such service provider, custodian, or other person) who has access to communications, either as they are transmitted or while they are stored, or equipment that is being or may be used to transmit or store such communications;

`(4) a significant purpose of the acquisition is to obtain foreign intelligence information; and

`(5) the minimization procedures to be used with respect to such acquisition activity meet the definition of minimization procedures under section 101(h).

I am a little unsure about the purpose of subparagraph 2 here. Since subparagraph 3 seems to be aimed at ISP's and communications providers, I am not sure how reviewing the information they have while it is being transmitted is not electronic surveillance, but another part of S1967 amends FISA as follows:

Sec. 105A. Nothing in the definition of electronic surveillance under section 101(f) shall be construed to encompass surveillance directed at a person reasonably believed to be located outside of the United States.

It seems that what is contemplated here is that, on application, foreign intelligence can be collected outside the United States for a period of one year.

S 1927 also provides:

(b) A certification under subsection (a) is not required to identify the specific facilities, places, premises, or property at which the acquisition of foreign intelligence information will be directed.

The Fourth Amendment to the Constitution states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

How does FISA as amended by S 1927 comport with the Fourth Amendment.

...The right of the people... Who precisely is the people referred to in the amendment. For this FindLaw invites our attention to a 1990 Supreme Court Decision in United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990).

This phrase, the Court determined, ''refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with [the United States] to be considered part of that community.''28 The Fourth Amendment therefore does not apply to the search and seizure by United States agents of property that is owned by a nonresident alien and located in a foreign country. The community of protected people includes U.S. citizens who go abroad, and aliens who have voluntarily entered U.S. territory and developed substantial connections with this country. There is no resulting broad principle, however, that the Fourth Amendment constrains federal officials wherever and against whomever they act.

Although this decision related to property, the principle that the Fourth Amendment was not a constraint on federal officials against persons not a part of the United States national community is an important consideration.

...secure in their persons, houses, papers, and effects, against unreasonable searches and seizures...

Although the Courts have extended Fourth Amendment protections to wiretapping and other electronic surveillance conducted from outside houses, the extended protections have been limited to a connection with criminal investigations. It may be posited that the FISA surveillance is not for the purpose of criminal investigation, but to protect against attacks on the United States and her people. As a result such surveillance, not for criminal prosecution, may be beyond the scope of the Fourth Amendment.

One may well ask why obtain warrants at all if the surveillance itself is beyond the Fourth Amendment. A look and the definition of the people again would suggest that some surveillance may incidentally involve persons who are covered by the Fourth Amendment, U.S. citizens and resident aliens while abroad. The FISA warrants then extend protection to that class of persons and provide some review process to ensure the purpose of the surveillance is in fact to obtain foreign intelligence information.

My conclusion is the Senator Webb's vote for S 1927, and the act itself, do not betray the Fourth Amendment, the voters of Virginia, or of the United States.
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