Judicial recess appointments.

A paper addressing recess appointments can be found here.

Here is an introduction of the paper taken directly therefrom:

"Judicial Recess Appointments: A Survey of the Arguments

"The President's authority to install judges under the Recess Appointments Clause is well established as a matter of historical practice. In fact, Presidents have made more than 300 recess appointments to the federal judiciary.

"Presidents have used their Recess Appointments power to appoint federal judges since the beginning of the Nation's history. During recesses of the First Congress, President Washington made three recess appointments to the federal district court. There was no apparent objection by any member of his Cabinet or the Senate, which subsequently confirmed all three for lifetime positions on the bench. President Washington also made two recess appointments to the Supreme Court. Although one of them-Chief Justice John Rutledge- was later denied confirmation for a permanent post, it was not due to objections to the earlier recess appointment. The first five Presidents made a total of twenty-nine recess appointments of judges ...

New article on the Necessary and Proper Clause available online
Randy Barnett's article on the original understanding of the Necessary and Proper Clause is available for download here.

The Necessary and Proper Clause may play a role in resolving Sabri v. United States (03-44), which I discuss here.

Send 'em to jail for undersized lobster tails.
This commentary, via SCOTUS, discusses the prudence of the effort to imprison a seafood importer for, among other crimes against humanity, placing lobster tails in plastic bags rather than cardboard boxes; and importing lobster tails that were shorter than 5.5 inches.

The case is McNab v. United States (03-622). The government's brief supporting McNab's conviction is available here.

Can there be any doubt that each day we become less free?

A New Joke

Most of us have heard the old saw that "a conservative is a liberal who has been mugged." If that is true, then a libertarian is a conservative who has been mugged by the state.

"Amnesty Trapdoor: What is the president thinking on immigration?"
John O'Sullivan has an excellent column here, answering many of the arguments in support of relaxed immigration standards.

CATO Institute Study on Immigration Reform:

Daniel Griswold has written a study on illegal immigration. In his summary, Mr. Griswold writes:

"Legalizing Mexican migration would, in one stroke, bring a huge underground market into the open. It would allow American producers in important sectors of our economy to hire the workers they need to grow. It would raise wages and working conditions for millions of low-skilled workers and spur investment in human capital. It would free resources and personnel for the war on terrorism.

"Contrary to common objections, evidence does not suggest that a properly designed system of legal Mexican migration will unleash a flood of new immigrants to the United States, hurt low-skilled Americans, burden taxpayers, create an unassimilated underclass, encourage lawbreaking, or compromise border security.

"President Bush and leaders of both parties in Congress should return to the task of turning America's dysfunctional immigration system into one that is economically rational, humane, and compatible with how Americans actually arrange their lives.

The free market argument in support of liberalizing immigration into this country is simple, namely, there is both a great demand for and great supply of low-skilled workers. The only thing preventing the intersection between this supply and demand is Congress and the President.

What bothers me about this position is that it ignores non-economic reasons for immigration restraint. My conception of the good and the just differs from what many low-wage immigrants would bring to America. Mexican immigrants vote overwhemling Democrat, according to this poll. The Democratic party supports gun control, abortion, and an unlimited federal government. Democratics also support anti-discrimination laws that chill free speech by causing people with anti-PC views from speaking out for fear of discipline, ridicule, or worse. Democrats even seek to kill speech at universities, which should be the last safe haven for free expression.

Hillary Clinton mocks Ghandi, minorities:

According to abc news, via Drudge, Hillary Clinton made this remark:
"Clinton introduced a quote from Gandhi by saying, 'He ran a gas station down in St. Louis.'"

First, we are told that minorities must receive affirmative action in order to attend the elite law schools. Then we had Howard Dean attempting to drape himself in the Confederate flag. Now we have Hillary stereoptyping gas station owners.

I have always considered the Demoractic party to be the most racist party of our two-party system. Liberal racism, though perhaps benign and paternal, is no less worthy of reproach than cross burning.

Phyllis Schlafly asks
"Were Department of Homeland Security Secretary Tom Ridge's Miami meanderings a gaffe, a trial balloon, an announcement of his department's policy, or an announcement of Bush administration policy?
We are entitled to know."

Free Speech (But Only if You're in Left Field)
An article in the Washington Times begins:
"Tim Bueler recently received some unusual advice: His principal and a campus police officer suggested that he stay home from his California high school for a few days."
"They feared for his safety because Tim, the founder of Rancho Cotate High School's new Conservative Club, said he had received threats from other students after writing an article for the club newsletter calling for a crackdown on illegal immigration."
"The teacher told him, 'When you say things like that, you've got to expect that things like this are going to happen. Why don't you go out the back door?' " Mr. Bueler said in recounting the incident."
...
"Tim said teachers have also joined in the name-calling. One called Tim a Nazi, while another described the club as 'a bunch of bigots.' In a parody of the newsletter, biology teacher Mark Alton called on students to 'take a stand against the neoconservative wing-nuts who call themselves Americans.'"
***

Could you imagine the outcry if a gay student had been persecuted for starting a local GBTSA?

But who makes the best omelettes?
Brian Leiter provides more law school rankings than I knew existed.

So much for Jeopardy
This story reminded me of White Men Can't Jump where the woman (played by Rosie Perez) always had an Almanac handy. Today, she would have to be weary, as "[t]he FBI is warning police nationwide to be alert for people carrying almanacs, cautioning that the popular reference books covering everything from abbreviations to weather trends could be used for terrorist planning. In a bulletin sent Christmas Eve to about 18,000 police organizations, the FBI said terrorists may use almanacs "to assist with target selection and pre-operational planning." Story via the Drudge Report.

Cult of Scalia
The Cult of Scalia worships here.

Militant Picketing
The NLG provides a how-to on "militant picketing" at this link.
The strikers in various states are angry because, among other things, they will have to pay more out-of-pocket for their health insurance. I know A LOT of people without health insurance. Many of these people shop at Von's, Kroeger, Ralph's, Albertson's, etc. What the striker's do not realize is that the cost of health insurance will have to be borne by someone. Should the striker's get their way, the customers (many of whom are without health insurance) will be forced to pay the striker's insurance.

Most people do not understand basic economic principles, foremost being that there is no such thing as a free lunch. Henry Hazlitt makes economics accessible in this book.

Giving illegal immigrants the right to vote. No history, no study, no debate
See this column here, analyzing the usual drivel that denying the right to vote to illegal immigrants means treating them like outsiders. Well, duh. They ARE outsiders. They are in this country illegally. If I were not in such a good mood, I would call them criminals.

Vincente Fox, Great President.
Vincente Fox has been upset with Bush for a couple of years. The problem? Bush has not given amensty to illegal immigrants. Nor has Bush loosened immigration practices.

Fox should be mad. It is not within the self-interest of Mexico for Bush to deny opportunity to Mexicans who will presumably send some of this wealth to Mexico. In a perfect world - for Fox, et al. - the Mexicans would travel across the border; work; and then return to spend their money.

And so, Fox is an advocate for the Mexican people. THIS IS GOOD. I like Fox because he is an advocate for the interest of his citizens, and thus, his country.

Maybe president Bush will look out for American citizen by denying Fox.

An Idea Stolen From Ann Coulter: On Pandering.
Ann Coulter said that republicans are foolish to pander to liberal special interest groups because such pandering, at best, will placate. The CEO of NOW is not going to vote Bush no matter what he does. The President of NAMBL will not vote Bush, even if he lowers the age of consent to 8. Nor will MECHA members suddenly support Bush, even if he gives amenesty to every illegal immigrant in the country. Couler said that Reagan ran on a platform of principles, even when some argued that those principles would offend many special intersts. But he won. Twice. Republicans who run on a platform of pandering may well lose because those to whom they pandered will still not vote republican.

Let's apply this principle to Bush's plan to liberalize (literally and politically) immigration. [Note: I am not saying Ann Coulter would make this argument.]

Such liberalization would please the National Council of La Raza (literally, "the race"). It would please business owners who seek to exploit cheap labor. CATO will also be pleased. But the move will anger rank-and-file republicans. This move is stupid. Here is why.

No one in La Raza will vote for Bush, even post immigration changes. No one in business who regularly exploits unskilled workers (this category of people presumably already votes republican) will change his vote based on this move. The republicans are good for business; was, is, always will be. Thus, Bush will see no net gain in votes from these categories of people based on legalizing the illegals.

But the rank-and-file, the farmer in Iowa, the mother in Nebraska, the person who cares about culture in Calfornia, may change their votes based on this move.

Bush is mistaken to think that hispanics will suddenly vote Bush because of this move. But a great many people may vote for a strong 3rd party candidate with truly conservative ideals. Did we forget about Ross Perot?

Aha! But since there is no such 3rd party candidate, Bush will pander. Why not pander (or "experiment") when he will not likely suffer an adverse consequeces at the ballot box?

In other words, absent this candidate, conservatives lose. Where is this person? Can we amend the Constitution in time for Margaret Thatcher to run?

The One-Million Man (and Woman) March.
With Bush seeking to legalize illegal conduct (invading the country vis-a-vis illegal immigration) while our culture is facing a Romanesque declince, I have to ask a favor.

Please complete the following: Tom McClintock was to Arnold Schwarzenegger who __________ is to President Bush. "Wishful thinking" is not the correct answer.

What the California election proved is that there is a still a strand of conservatism in America. McClintock ran on a platform of true conservatism. And although he did not almost win; he proved a point. Namely, at least one-million people were conservative enough to risk allowing Cruz BustaMECHA elevation to the governor's mansion. Although this is a meek voice in a state election, imagine the thunder such voting would have on the national election.

I propose that conservatives be willing to give up the white house for 4 years. Vote strategically for the house and senate. But send a message to the chief executive. Show him that he will win or lose as conservatives.

Now, whose name belongs in the above blank space.

The terminology of crime.
Does anyone else feel insecure when speaking about the status of a citizen caught up on the criminal justice system? Appellate cases often refer to the prisoner as "defendant." But since this person has been convicted, is he not now a "convict"? And what do we call a citizen/suspect who has been indicted. Is this person an "indictee" or "criminal defendant"? Do we further distinguish by saying pre-trial defendant vs. in-the-arena defendant? Or does one size fit all?

First step, citizen. Then suspect. Then criminal defendant. Then convict or prisoner. Am I correct here?
If the defendant prevails at trial, is he now the "acquitted" or does he remain the "accused"? I prefer citizen but I note much inconsistency in usage (my own included).

Qualified Immunity Makes Ignorance Blissful.A police officer who violates a citizen's Constitutional rights may nonetheless be immune from suit unless that Constitutional right was "clearly established," where clearly established means that a reasonable state actor would have known of the law. Qualified immunity protects all but the dumbest and the meanest. In other words, the police are not liable unless the act they are taking is pretty shady. So shady that they out to know something is wrong with their conduct.

Would this not make a great model for ALL laws? We all can agree that some things are ALWAYS wrong, e.g., murder, exploiting minors, & etc. Or at least all SANE people can agree that those things are always wrong. (See NAMBL, a perverted organization that condones conduct too disguisting to place here. Or see the Americal Psychological Association, which has argued that such relationships are good "mentoring.")

But conduct taken in ignorance of other laws that proscribe conduct not so clearly wrong is no defense to criminal or civil liability. We must obey even stupid laws, or else face a lawsuit or prosecution.

I do not buy into the argument that, well, they have a tough job and have a lot of discretionary functions to perform. And so, we should not restrain their discretion. Nor am I afraid that a police officer would be compelled to study Con Law if he were not granted qualified immunity. Anyone who has ever been pulled over is confident that police officers are quite adept at memorizing and reciting law.

We the People also have many discretionary functions to perform. Everything from water-pressure to the rise and run of stairs are covered under some federal law, euphemistically called "regulations". Imagine being an employer who has to fire an employee. That employer has to decide whether this will subject himself to liability; whether it will "prove" him a racist or sexist if he fires someone in a protected class, & etc. No immunity from civil liability for him. No immunity for Mrs. Atwater, a soccer mom who was arrested (yes, cuffed and stuffed) for not wearing her safety belt. (See Mugged by the State for more examples of government misconduct).

I propose that citizens ignorant of ignorant laws should be both criminally and civilly immune from suit. This new defense will not work for murderers, perverts, & etc., but it might be enough to stave off the EEOC.

Has anyone else read the oral argument transcript in Fellers v. United States? If not, it is available here:

Does anyone else find it funny that the supreme court justices are worried stiff that creating a bright line rule requiring a waiver of the 6th Amendment right to counsel before interrogating an indicted criminal defendant is overly "technical" or "formal"? Our whole legal system is based on technicalities. Many crimes are crimes not because they are wrong in themselves, but because they violate a legislatively-crafted technically, re: a law.

The funniest example I heard of such technicalities applying to ordinary people is in the context of war protesting. If you are protesting near a federal building, you may be guilty of a local crime, if you are blocking the flow of traffic, etc. But if you step on the grass, you may be guilty of a federal crime, since you are on federal soil. Imagine the poor guy who jumps from the road to dodge a car and falls onto federal soil. Two for the price of one. Odd.

And yet I have never seen a case dismissed on the ground that the law violated was a mere formality, or overly technical. Imagine the supreme court saying, "We hold that the defendant was wrongfully convicted because the law is too technical; does not make sense; and is difficult to comply with."

But when it comes to the police, well, we do not want to hinder them with such formalism. Where the formalism comes, of course, from the Constitution. Today the Bill of Rights are obstacles to be overcome rather than rights to be enforced.

Alas, poor Jefferson. I knew him, Rehnquist.