Tagged: Law

Will The Supreme Court Strike Down Obamacare? Judge Napolitano Weighs the Issue.

3.26.2010 By Chase K. Hunter

Related article: courtesy of Newsmax.com

Napolitano: Supreme Court to Strike Down Obamacare

See http://newsmax.com/Headline/Andrew-Napolitano-barack-obama/2010/03/26/id/354008

D.C. Congressman to Napolitano:

“Most of what we do down here, [D.C.] is not in the constitution.”


A ray of hope shines through, as the glimmer of possibility emerges that the Supreme Court may have just cause legally to strike down Obamacare as unconstitutional.Judge Napolitano, interviewed by Newsmax.tv, voiced strong convictions about the current disregard for the American constitution by the Obama White House. I find it the height of irony that Obama was a professor of constitutional law before he ran for office. It makes me wonder if he examined the constitution with enough legal scrutiny to formulate a very specific plot to dismantle it, by degrees, during his presidency. Why else would a professor of constitutional law shred the document and trample it as President?

Chase

Related article:

Friday, 26 Mar 2010 06:32 PM

By: David A. Patten

President Barack Obama is one of the worst presidents ever in terms of respecting constitutional limitations on government, and the states suing the federal government over healthcare reform “have a pretty strong case” and are likely to prevail, according to author and judicial analyst Andrew P. Napolitano.

In an exclusive interview with Newsmax.TV’s Ashley Martella, Napolitano says the president’s healthcare reforms amount to “commandeering” the state legislatures for federal purposes, which the Supreme Court has forbidden as unconstitutional.

“The Constitution does not authorize the Congress to regulate the state governments,” Napolitano says. “Nevertheless, in this piece of legislation, the Congress has told the state governments that they must modify their regulation of certain areas of healthcare, they must surrender their regulation of other areas of healthcare, and they must spend state taxpayer-generated dollars in a way that the Congress wants it done.

Special: Do You Back Obama’s Healthcare Plan? Vote Here Now!
“That’s called commandeering the legislature,” he says. “That’s the Congress taking away the discretion of the legislature with respect to regulation, and spending taxpayer dollars. That’s prohibited in a couple of Supreme Court cases. So on that argument, the attorneys general have a pretty strong case and I think they will prevail.”

Napolitano, author of “Lies the Government Told You: Myth, Power, and Deception in American History” and a Fox News senior judicial analyst, is the youngest Superior Court judge ever to attain lifetime tenure in the state of New Jersey. He served on the bench from 1987 to 1995.

Napolitano tells Newsmax that the longstanding precedent of state regulation of the healthcare industry makes the new federal regulations that much more problematic.

“The Supreme Court has ruled that in areas of human behavior that are not delegated to the Congress in the Constitution, and that have been traditionally regulated by the states, the Congress can’t simply move in there,” Napolitano says. “And the states for 230 years have had near exclusive regulation over the delivery of healthcare. The states license hospitals. The states license medications. The states license healthcare providers whether they’re doctors, nurses, or pharmacists. The feds have had nothing to do with it.

“The Congress can’t simply wake up one day and decide that it wants to regulate this. I predict that the Supreme Court will invalidate major portions of what the president just signed into law…”

The judge also says he would rate President Obama as one of the worst presidents in terms of obedience to constitutional limitations.

“I believe we have a one party system in this country, called the big-government party,” Napolitano says. “There is a Republican branch that likes war and deficits and assaulting civil liberties. There is a Democratic branch that likes welfare and taxes and assaulting commercial liberties.

“President Obama obviously is squarely within the Democratic branch. The president who had the least fidelity to the Constitution was Abraham Lincoln, who waged war on half the country, even though there’s obviously no authority for that, a war that killed nearly 700,000 people. President Obama is close to that end of lacking fidelity to the Constitution. He wants to outdo his hero FDR.”

For those who oppose healthcare, the Fox legal expert says, the bad news is that many of the legal challenges to healthcare reform will have to wait until 2014, when the changes become fully operational.

Until then, there would be no legal case that individuals had been actually harmed by the law. Moreover, Napolitano says it takes an average of four years for a case to work its way through the various federal courts the final hearing that’s expected to come before the Supreme Court.

“You’re talking about 2018, which is eight years from now, before it is likely the Supreme Court will hear this,” he says.

Other issues that Napolitano addressed during the wide-ranging interview:

  • He believes American is in danger of becoming “a fascist country,” which he defines as “private ownership, but government control.” He adds, “The government doesn’t have the money to own anything. But it has the force and the threat of violence to control just about anything it wants. That will rapidly expand under President Obama, unless and until the midterm elections give us a midterm correction – which everyone seems to think, and I’m in that group, is about to come our way.
  • Napolitano believes the federal government lacks the legal authority to order citizens to purchase healthcare insurance. The Congress [is] ordering human beings to purchase something that they might not want, might not need, might not be able to afford, and might not want — that’s never happened in our history before,” Napolitano says. “My gut tells me that too is unconstitutional, because the Congress doesn’t have that kind of power under the Constitution.”
  • The sweetheart deals in the healthcare reform bill used that persuaded Democrats to vote for it – the Louisiana Purchase, Cornhusker Kickback, Gatorade Exception and others – create “a very unique and tricky constitutional problem” for Democrats, because they treat citizens differently based on which state they live in, running afoul of the Constitution’s equal protection clause according to Napolitano. “So these bennies or bribes, whatever you want, or horse trading as it used to be called, clearly violate equal protection by forcing people in the other states to pay the bills of the states that don’t have to pay what the rest of us do,” Napolitano says.
  • Exempting union members from the so-called “Cadillac tax” on expensive health insurance policies, while imposing that tax on other citizens, is outright discrimination according to Napolitano. “The government cannot draw a bright line, with fidelity to the Constitution and the law, on the one side of which everybody pays, and the other side of which some people pay. It can’t say, ‘Here’s a tax, but we’re only going to apply it to nonunion people. Here’s a tax, and we’re only going to apply it to graduates of Ivy League institutions.’ The Constitution does not permit that type of discrimination.”
  • Politicians from both parties routinely disregard the Constitutional limits imposed on them by the nation’s founding document, Napolitano says. “The problem with the Constitution is not any structural problem,” says Napolitano. “The problem with the constitution is that those who take an oath to uphold it don’t take their oath seriously. For example, just a month ago in interviewing Congressman Jim Clyburn, who’s the No. 3 ranking Democrat in the House, I said to him, Congressman Clyburn, can you tell me where in the Constitution the Congress is authorized to regulate healthcare? He said, ‘Judge, most of what we do down here,’ referring to Washington, ‘is not authorized by the Constitution. Can you tell me where in the Constitution we’re prohibited from regulating healthcare.’ Napolitano says that reflects a misunderstanding of what the Constitution actually is. “He’s turning the Constitution on its head, because Congress is not a general legislature,” he says. “It was not created in order to right every wrong. It exists only to legislate in the 17 specific, discrete, unique areas where the Constitution has given it power. All other areas of human area are reserved for the states.”
  • Napolitano says that members of Congress infringe on Constitutional rights because they fail to recognize its basis. “They reject Jefferson’s argument, in the Declaration of Independence, that our rights come from our Creator, therefore they’re natural rights, therefore they can’t be legislated away,” Napolitano says. “They think they can legislate on any activity, regulate any behavior, tax any person or thing, as long as the politics will let them survive. They’re wrong, and with this healthcare legislation, they may be proven wrong, in a very direct and in-your-face way.”

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America’s Most Wanted Host Meets With Obama Over the Chelsea King Rape Murder Case

3.3.2010

My soul was sickened when I learned yesterday that Chelsea King’s body had been recovered.

Had Chelsea not felt safe in her own neighborhood, she would not have gone jogging alone. American lawmakers and American society have failed Chelsea and her family, because lawmakers have failed to act before now in passing strident enough laws that would put fear and dread into the hearts of men who are lifelong sexual predators.

What happened to Chelsea King is a national tragedy and never should have taken place.

If registered sex offenders are going to be paroled into American society, they need to be physically castrated first. I have thought for 20 years that this is the only right final solution that can keep neighborhoods and communities protected: either lock them up for the rest of their natural lives, or castrate them first before parole.

It would send a message loud and clear that American society no longer has the least bit of tolerance for the sex offenders that live in their midst.

I have to endure living with a registered sex offender in my neighborhood and I resent it each and every day. Thankfully the man is 86 years old now, but if he was younger and could do harm, he would. It’s still in his eyes. I have seen him walk into a room and clear the room with the aura of his presence.

We should castrate all repeat offender sex offenders after the second offense. Every state needs to pass laws that carry out this task to keep America’s men, women and children safe. These people – with certain rare exceptions – cannot be rehabilitated. Psychiatrists and psychologists well know this, and so do prosecuting attorneys in criminal law.

The sorrow of this case now only deepens as two other outstanding missing person and possible murder cases are being re-examined as the perpetrator may have also been responsible for their deaths as well.

Lawmakers need to do what must be done to finally put a stop to these heinous acts.

It makes me angry that I now need to carry pepper spray with me at all times, that I think twice before taking a walk or a hike, and that I now keep pepper spray in my car as well. I don’t feel safe in my own neighborhood. I’ve placed some links to pepper spray and safety related products for women and teen girls. I hate to say this, but every woman, teen girl and teen boy should own and carry pepper spray.

The laws in this country are too lenient and the men who perpetrate these crimes fear no retribution. They act with impunity and bravado in broad daylight. It must be stopped. Every state needs to pass laws mandating castration of repeat sex offenders.

Too many precious innocent lives have been lost. Even one lost life is too many.

Chase K. Hunter

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Chelsea King’s Body Found: An Outraged Community Mourns

Was Chelsea King’s Death Preventable?

John Walsh Said President Obama Vowed to Fund Federal Sex Offender Law

By MIKE VON FREMD, RUSSELL GOLDMAN and SARAH NETTER

March 4, 2010

He was in court for just minutes, but the mere sight of the convicted sex offender charged with raping and murdering 17-year-old Chelsea King set off a fresh round of outrage that reached as far as the White House.

John Walsh says the laws for monitoring sex offenders don’t work.

More Photos

John Albert Gardner III, 30, pleaded not guilty Wednesday, but the community obviously had a very different opinion.

In the hours before his court appearance in San Diego Wednesday, someone spray painted his mother’s garage with the words, “Chelsea’s blood is on you — move out.” And neighbors screamed at two men who tried to paint over it.

“You’re protecting somebody who has killed an innocent girl,” one yelled. “Get out of here.”

John Walsh, host of “America’s Most Wanted,” said he met with President Obama Wednesday to discuss child protection laws and funding for the Adam Walsh Act, signed three years ago by President Bush.

The law promised to create a national registry of sex offenders and keep closer track of the most violent of them, but it did not come with the funds needed to carry it out.

“President Obama said yesterday, ‘As the father of two girls, John, I will get the Adam Walsh law funded,'” Walsh told “Good Morning America” today.

Walsh, whose 6-year-old son for whom the law is named and who was kidnapped and murdered in 1981, knows firsthand the grief King’s parents are experiencing.

“They’re in the worst place a parent could be,” he said. “They look in that courtroom and see a guy who should have never been out on the streets.”

King, a well-liked honors student, vanished after heading out for a jog in a semi-rural San Diego County park. Her body was found less than a week later, buried in a shallow grave near the shore of Lake Hodges, about a half-mile from her car.

But the outrage grew with the arrest of Gardner, a known violent sex offender who has since been charged with the December assault and attempted rape of 22-year-old Candice Moncayo in the same park where King’s body was found.

“I think everyone asks the same question,” Walsh said. “Why was this animal out on the streets?”

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FEDs Are Using Your Cell Phones to Track, Surveil You Without A Warrant: Did You Know?

Out Geeking with mobile phones

Image by Annie Mole via Flickr

2.25.2010

We’re headed toward a surveillance society, London style, if people do not speak out against warrantless tracking and surveillance of people in America. The latest breach of privacy: FEDS are using people’s cell phones to follow them with obtaining a warrant. That’s not even legal.

CK Hunter

Here’s the story and related info:

Law enforcement is tracking Americans’ cell phones in real time—without the benefit of a warrant.

Amid all the furor over the Bush administration’s warrantless wiretapping program a few years ago, a mini-revolt was brewing over another type of federal snooping that was getting no public attention at all. Federal prosecutors were seeking what seemed to be unusually sensitive records: internal data from telecommunications companies that showed the locations of their customers’ cell phones—sometimes in real time, sometimes after the fact. The prosecutors said they needed the records to trace the movements of suspected drug traffickers, human smugglers, even corrupt public officials. But many federal magistrates—whose job is to sign off on search warrants and handle other routine court duties—were spooked by the requests. Some in New York, Pennsylvania, and Texas balked.

Prosecutors “were using the cell phone as a surreptitious tracking device,” said Stephen W. Smith, a federal magistrate in Houston. “And I started asking the U.S. Attorney’s Office, ‘What is the legal authority for this? What is the legal standard for getting this information?’ “

Those questions are now at the core of a constitutional clash between President Obama’s Justice Department and civil libertarians alarmed by what they see as the government’s relentless intrusion into the private lives of citizens. There are numerous other fronts in the privacy wars—about the content of e-mails, for instance, and access to bank records and credit-card transactions. The Feds now can quietly get all that information. But cell-phone tracking is among the more unsettling forms of government surveillance, conjuring up Orwellian images of Big Brother secretly following your movements through the small device in your pocket.

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How many of the owners of the country’s 277 million cell phones even know that companies like AT&T, Verizon, and Sprint can track their devices in real time? Most “don’t have a clue,” says privacy advocate James X. Dempsey. The tracking is possible because either the phones have tiny GPS units inside or each phone call is routed through towers that can be used to pinpoint a phone’s location to areas as small as a city block. This capability to trace ever more precise cell-phone locations has been spurred by a Federal Communications Commission rule designed to help police and other emergency officers during 911 calls. But the FBI and other law-enforcement outfits have been obtaining more and more records of cell-phone locations—without notifying the targets or getting judicial warrants establishing “probable cause,” according to law-enforcement officials, court records, and telecommunication executives. (The Justice Department draws a distinction between cell-tower data and GPS information, according to a spokeswoman, and will often get warrants for the latter.)

The Justice Department doesn’t keep statistics on requests for cell-phone data, according to the spokeswoman. So it’s hard to gauge just how often these records are retrieved. But Al Gidari, a telecommunications lawyer who represents several wireless providers, tells NEWSWEEK that the companies are now getting “thousands of these requests per month,” and the amount has grown “exponentially” over the past few years. Sprint Nextel has even set up a dedicated Web site so that law-enforcement agents can access the records from their desks—a fact divulged by the company’s “manager of electronic surveillance” at a private Washington security conference last October. “The tool has just really caught on fire with law enforcement,” said the Sprint executive, according to a tape made by a privacy activist who sneaked into the event. (A Sprint spokesman acknowledged the company has created the Web “portal” but says that law-enforcement agents must be “authenticated” before they are given passwords to log on, and even then still must provide valid court orders for all nonemergency requests.)

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There is little doubt that such records can be a powerful weapon for law enforcement. Jack Killorin, who directs a federal task force in Atlanta combating the drug trade, says cell-phone records have helped his agents crack many cases, such as the brutal slaying of a DeKalb County sheriff: agents got the cell-phone records of key suspects—and then showed that they were all within a one-mile area of the murder at the time it occurred, he said. In the fall of 2008, Killorin says, his agents were able to follow a Mexican drug-cartel truck carrying 2,200 kilograms of cocaine by watching in real time as the driver’s cell phone “shook hands” with each cell-phone tower it passed on the highway. “It’s a tremendous investigative tool,” says Killorin. And not that unusual: “This is pretty workaday stuff for us.”

But there is also plenty of reason to worry. Some abuse has already occurred at the local level, according to telecom lawyer Gidari. One of his clients, he says, was aghast a few years ago when an agitated Alabama sheriff called the company’s employees. After shouting that his daughter had been kidnapped, the sheriff demanded they ping her cell phone every few minutes to identify her location. In fact, there was no kidnapping: the daughter had been out on the town all night. A potentially more sinister request came from some Michigan cops who, purportedly concerned about a possible “riot,” pressed another telecom for information on all the cell phones that were congregating in an area where a labor-union protest was expected. “We haven’t even begun to scratch the surface of abuse on this,” says Gidari.

That was precisely what Smith and his fellow magistrates were worried about when they started refusing requests for cell-phone tracking data. (Smith balked only at requests for real-time information, while other magistrates have also objected to requests for historical data on cell-phone locations.) The grounds for such requests, says Smith, were often flimsy: almost all were being submitted as “2703(d)” orders—a reference to an obscure provision of a 1986 law called the Stored Communications Act, in which prosecutors only need to assert that records are “relevant” to an ongoing criminal investigation. That’s the lowest possible standard in federal criminal law, and one that, as a practical matter, magistrates can’t really verify. But when Smith started turning down government requests, prosecutors went around him (or “judge shopping,” in the jargon of lawyers), finding other magistrates in Texas who signed off with no questions asked, he told NEWSWEEK. Still, his stand—and that of another magistrate on Long Island—started getting noticed in the legal community. Facing a request for historical cell-phone tracking records in a drug-smuggling case, U.S. magistrate Lisa Pupo Lenihan in Pittsburgh wrote a 56-page opinion two years ago that turned prosecutors down, noting that the data they were seeking could easily be misused to collect information about sexual liaisons and other matters of an “extremely personal” nature. In an unusual show of solidarity—and to prevent judge shopping—Lenihan’s opinion was signed by every other magistrate in western Pennsylvania.

The issue came to a head this month in a federal courtroom in Philadelphia. A Justice Department lawyer, Mark Eckenwiler, asked a panel of appeals-court judges to overturn Lenihan’s ruling, arguing that the Feds were only asking for what amounted to “routine business records.” But he faced stiff questioning from one of the judges, Dolores Sloviter, who noted that there are some governments, like Iran’s, that would like to use such records to identify political protesters. “Now, can the government assure us,” she pressed Eckenwiler, that Justice would never use the provisions in the communications law to collect cell-phone data for such a purpose in the United States? Eckenwiler tried to deflect the question, saying he couldn’t speak to “future hypotheticals,” but finally acknowledged, “Yes, your honor. It can be used constitutionally for that purpose.” For those concerned about what the government might do with the data in your pocket, that was not a comforting answer.

Re-post courtesy  Newsweek

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