There is no greater insult to a teacher than to forever remain a student.
People who devote their lives to Nietzche's work irritate me. Those people also irritate Zarathustra, who writes: "One requites a teacher badly if one remains merely a student."
If I remember correctly, the Kaufmann edition is slightly different, with Zarathustra saying, "There is no greater insult to a teacher than to forever remain a student."
Regardless of the preferred translation, the morale is clear.
A blog devoted to law, politics, philosophy, & life. Nothing in this blog is to be construed as legal advice.
Tuesday, January 20, 2004
Sabri v. United States.
Why has this case not received more ink? I did a Google search w/"Sabri v. United States" and received only 5 pages of hits, of which many were duplicative. This is a MAJOR case. Major if you consider United States v. Lopez and United States v. Morrison to be major cases.
Sabri asks, among other questions, whether congress has power under either the Spending or Sweeping Clauses to enact the federal program bribery statute, 18 U.S.C. s 666(a)(2)? [The other questions involve matters of statutory interpretation and the application of a facial challenge to criminal statutes]. In other words, did Congress exceed its enumerated powers by creating a law that criminalizes monetary exchanges not involving federal funds?
Sabri is a property developer who allegedly offered three bribes to a city councilman, Brian Herron: One each for $5,000; $10,000; and $80,000. Sabri allegedly said he would pay Herron $10,000 to threaten people who owned property that Sabri wanted with the city's power of eminent domain if those property owners would not sell to Sabri. The $5,000 was allegedly offered in exchange for Herron's ensuring that Sabri would obtain regulatory approval over a major development project. The $80,000 was allegedly offered as a 10% kickback to Herron if he would divert $800,000 of city money to Sabri's project. [Isn't is grand that city councilpersons may condemn your property notwithstanding the public use requirement of the Takings Clause?]
Anyhow, the government contends that because it provides Minneapolis with over $10,000 a year in federal funding (28.8mm precisely), it has the power to criminalize bribes aimed at municipalities with control over that money, even if the person making the bribe is not after the federal money. In support of this position, the government offers at least three arguments.
FIRST, because Congress SPENDS money, it may enact legislation pursuant to those expenditures. Applied here: Congress spent 28.8mm. Section 666 is a regulation enacted pursuant to this expenditure. Or, SECOND, Section 666 is attached as a condition to federal expenditures. To wit, even if Congress did not have an independent textual power to enact Section 666, it is allowed to attach conditions to federal funds, even if those conditions, if passed as separate legislation, would be unconstitutional. When Minneapolis accepted the federal money, it agreed that its citizens would be subjected to criminal liability for offering bribes. In other words, the citizens of Minnesota, by and through their duly elected representatives, accepted those conditions. Or, THIRD, under the Necessary and Proper Clause congress may enact any legislation that is rationally related to another textual power. The textual power here is the Spending Clause.
And the argument goes: Congress had the power to spend money (in the form of grants and other allocations) for local public works projects. Then, Congress rationally concluded that Section 666 was necessary and proper to protect the money from either being corrupted or from appearing that it could be corrupted. For some reason, the FBI is better and ferreting out corruption than local governments. Even if that is not true, Congress was at least rational to conclude This..
In opposition to this position rests common sense and an origional understanding of the Constitution.
Outside the legal arguments we see that the problem, of course, is how in the hell does Congress have the power to punish the $5,000 and $10,000 bribes that were allegedly offered to a local councilman as a quid pro quo for helping Sabri obtain development approval? If the government is correct, then Sabri offered Herron some money for favors regarding a local development project. What PROPER interest does congress have in such local dealings? These dealings, if true, are shady. But isn't that a problem for Minnesota? Why is the local politics of Minneapolis, Minnesota my business in Alabama, Arkansas, or New York? Why is such local conduct worthy of national attention?
There are also legal arguments against this power-grab by congress.
As a first principle, Congress is limited to enumerated powers. If there is no text in the Constitution granting Congress the power to enact a law, then congress may not enact such law. Nowhere in the Constitution is congress given a general police power - the power to define and punish crimes. Textually, congress may punish or define a couple of crimes, such a counterfeiting, treason, and felonies committed on the high seas. But that is the textual limit.
And although the supreme court has read into the Commerce Clause congressional power to punish crimes, those intances are limited to activities that substantially affect interstate commerce. Nowhere has the court read into the Spending Clause a similar power. Instead, a proper reading of the Spending Clause is that it confers upon congress the power to tax and spend. Nothing more. A criminal law is far removed from spending money, outside the salaries of federal enforcers, facilities, & etc.
The conditions doctrine must fail since Sabri was not in-privy to any alleged condition. Besides, congress can not violate principles of federalism in attaching conditions to money. Punishing local corruption, such as involved with the first two alleged bribes is solely a state matter. When congress seeks to put its nose in that tent, it violates principles of federalism, which allows congress only enumerated - and therefore limited - powers. And so, on federalism grounds, the conditions argument must fail.
Similarly, the necessary and proper argument fails because a law that violates principles of federalism is, by definition, not-proper.
Sources:
The 8th Circuit Court of appeals opinion: here
The government's opposition to Sabri's petition for cert. is here
Sabri's brief on the merits is here
The CATO Institute's amicus brief is here
Why has this case not received more ink? I did a Google search w/"Sabri v. United States" and received only 5 pages of hits, of which many were duplicative. This is a MAJOR case. Major if you consider United States v. Lopez and United States v. Morrison to be major cases.
Sabri asks, among other questions, whether congress has power under either the Spending or Sweeping Clauses to enact the federal program bribery statute, 18 U.S.C. s 666(a)(2)? [The other questions involve matters of statutory interpretation and the application of a facial challenge to criminal statutes]. In other words, did Congress exceed its enumerated powers by creating a law that criminalizes monetary exchanges not involving federal funds?
Sabri is a property developer who allegedly offered three bribes to a city councilman, Brian Herron: One each for $5,000; $10,000; and $80,000. Sabri allegedly said he would pay Herron $10,000 to threaten people who owned property that Sabri wanted with the city's power of eminent domain if those property owners would not sell to Sabri. The $5,000 was allegedly offered in exchange for Herron's ensuring that Sabri would obtain regulatory approval over a major development project. The $80,000 was allegedly offered as a 10% kickback to Herron if he would divert $800,000 of city money to Sabri's project. [Isn't is grand that city councilpersons may condemn your property notwithstanding the public use requirement of the Takings Clause?]
Anyhow, the government contends that because it provides Minneapolis with over $10,000 a year in federal funding (28.8mm precisely), it has the power to criminalize bribes aimed at municipalities with control over that money, even if the person making the bribe is not after the federal money. In support of this position, the government offers at least three arguments.
FIRST, because Congress SPENDS money, it may enact legislation pursuant to those expenditures. Applied here: Congress spent 28.8mm. Section 666 is a regulation enacted pursuant to this expenditure. Or, SECOND, Section 666 is attached as a condition to federal expenditures. To wit, even if Congress did not have an independent textual power to enact Section 666, it is allowed to attach conditions to federal funds, even if those conditions, if passed as separate legislation, would be unconstitutional. When Minneapolis accepted the federal money, it agreed that its citizens would be subjected to criminal liability for offering bribes. In other words, the citizens of Minnesota, by and through their duly elected representatives, accepted those conditions. Or, THIRD, under the Necessary and Proper Clause congress may enact any legislation that is rationally related to another textual power. The textual power here is the Spending Clause.
And the argument goes: Congress had the power to spend money (in the form of grants and other allocations) for local public works projects. Then, Congress rationally concluded that Section 666 was necessary and proper to protect the money from either being corrupted or from appearing that it could be corrupted. For some reason, the FBI is better and ferreting out corruption than local governments. Even if that is not true, Congress was at least rational to conclude This..
In opposition to this position rests common sense and an origional understanding of the Constitution.
Outside the legal arguments we see that the problem, of course, is how in the hell does Congress have the power to punish the $5,000 and $10,000 bribes that were allegedly offered to a local councilman as a quid pro quo for helping Sabri obtain development approval? If the government is correct, then Sabri offered Herron some money for favors regarding a local development project. What PROPER interest does congress have in such local dealings? These dealings, if true, are shady. But isn't that a problem for Minnesota? Why is the local politics of Minneapolis, Minnesota my business in Alabama, Arkansas, or New York? Why is such local conduct worthy of national attention?
There are also legal arguments against this power-grab by congress.
As a first principle, Congress is limited to enumerated powers. If there is no text in the Constitution granting Congress the power to enact a law, then congress may not enact such law. Nowhere in the Constitution is congress given a general police power - the power to define and punish crimes. Textually, congress may punish or define a couple of crimes, such a counterfeiting, treason, and felonies committed on the high seas. But that is the textual limit.
And although the supreme court has read into the Commerce Clause congressional power to punish crimes, those intances are limited to activities that substantially affect interstate commerce. Nowhere has the court read into the Spending Clause a similar power. Instead, a proper reading of the Spending Clause is that it confers upon congress the power to tax and spend. Nothing more. A criminal law is far removed from spending money, outside the salaries of federal enforcers, facilities, & etc.
The conditions doctrine must fail since Sabri was not in-privy to any alleged condition. Besides, congress can not violate principles of federalism in attaching conditions to money. Punishing local corruption, such as involved with the first two alleged bribes is solely a state matter. When congress seeks to put its nose in that tent, it violates principles of federalism, which allows congress only enumerated - and therefore limited - powers. And so, on federalism grounds, the conditions argument must fail.
Similarly, the necessary and proper argument fails because a law that violates principles of federalism is, by definition, not-proper.
Sources:
The 8th Circuit Court of appeals opinion: here
The government's opposition to Sabri's petition for cert. is here
Sabri's brief on the merits is here
The CATO Institute's amicus brief is here
Illinois v. Lidster, some scary language
In Illinois v. Lidster, the U.S. Supreme Court held that a road-side traffic stop whose only purpose was a fishing expedition for law enforcement officials, did not violate the 4th Amendment.
The Court writes that a per se rule against information gathering checkpoints is not needed because law enforcement departments do not have the resources to monitor every intersection. (Slip Opinion at 6). In other words, a lack of money is all that protects the American citizen from tyranny.
So long to a Supreme Court that cares about individual rights.
In Illinois v. Lidster, the U.S. Supreme Court held that a road-side traffic stop whose only purpose was a fishing expedition for law enforcement officials, did not violate the 4th Amendment.
The Court writes that a per se rule against information gathering checkpoints is not needed because law enforcement departments do not have the resources to monitor every intersection. (Slip Opinion at 6). In other words, a lack of money is all that protects the American citizen from tyranny.
So long to a Supreme Court that cares about individual rights.
Tuesday, January 13, 2004
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 ...
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 ...
Tuesday, January 06, 2004
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?
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.
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.
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.
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.
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.
Monday, January 05, 2004
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."
"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."
Tuesday, December 30, 2003
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?
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?
Monday, December 29, 2003
But who makes the best omelettes?
Brian Leiter provides more law school rankings than I knew existed.
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.
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.
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.
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.
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.
Thursday, December 25, 2003
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.
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.
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