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Archive for the ‘Constitutional Law’ Category

President Obama and Senator Chris Dodd

Obama has appeared to make health care reform the defining issue of his presidency. With over a 50% disapproval rating from the American people on this issue, Obama seems to have a know best attitude and may be willing to use whatever means to pass it despite what the majority of American’s want.

Reconciliation is a parliamentary procedure that would allow the Democrats to pass Obama’s unpopular health care reform with 51 votes. This means that the Democrats could pass legislation without any Republican’s onboard.

Sen. Jeff Bingaman of New Mexico stated, “We made a provision in the budget resolution [earlier this year] that it could be used to try to enact health care provisions related to health care reform. There are restrictions to what you can include in that…but I would support it if that’s the only way.”

If Democrats go it alone, using Reconcilation to pass healthcare reform with the majority of American’s disapproving, there may be a price to pay.

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President Ronald W. Reagan

Before Ronald  Reagan was president of the United States,  he spoke out against socialized medicine as a private citizen even when he was a democrat.

Ronald Reagan speaks out against socialized medicine in a 1961 video warning citizens to understand the constitution and understand that we will all lose liberties if we go this route .

Ronald Reagan was a private citizen back then. It’s over 10 minutes long, but if you believe in the constitution and indivdual liberty, it’s well worth listening to.

The following is a video of Ronald Reagan from the 1961 Operation Coffee Cup Campaign against socialized medicine that was proposed by the Democrats.

Watch video.

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NEW ORLEANS — A group of Louisiana attorneys asked a federal judge Wednesday to block the enforcement of new restrictions on lawyers’ advertisements.

U.S. District Judge Martin Feldman didn’t immediately rule on that request after hearing arguments in a pair of lawsuits that several attorneys filed against the Louisiana Attorney Disciplinary Board. Feldman also is weighing the board’s request for him to throw out the lawsuits.

James Garner, a lawyer for personal injury attorney Morris Bart, said the Supreme Court’s rules are “very paternalistic and inconsistent.”

“The road to violating the First Amendment was paved with good intentions,” he said. “They just didn’t do it the right way.”

Read Full story at Forbes

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From Politico.com

Just a few minutes ago, Sonia Sotomayor said she couldn’t give a definition of “judicial activism.” To which, Sen. Jeff Sessions (R-Ala.) pointed to Sen. Orrin Hatch’s definition of activism, saying it occurs when a judge incorporates bias into his or her decision.

“Senator, I want to give you complete assurance that I agree with Sen. Hatch with his definition of activism,” Sotomayor said. “If that is his definition that people should not be using their personal biases, their personal experiences, their personal prejudices in reaching a decision … then I’m in full agreement with him.”

She went on to say that she’s not an activist, despite continued concerns from Sessions about her “wise Latina” remarks.

Sonia Sotomayor

June 29, 2009 Washington – Sonia Sotomayor ruling on the Ricci vs. DeStefano case was overturned today by the Supreme Court in a 5-4 decision. Ricci vs. DeStefano is the case from New Haven, Connecticut about the firefighters who sued their municipal employers after they were denied a pay increase because minority fire fighters didn’t pass the same test they passed. As a member of the Second Circuit Court of Appeals, Sotomayor affirmed a lower court ruling in favor of the city.

New Haven was wrong to scrap a promotion exam because no African-Americans and only two Hispanic firefighters were likely to be made lieutenants or captains based on the results, the court said Monday in a 5-4 decision. The city said that it had acted to avoid a lawsuit from minorities.

“Fear of litigation alone cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions,” Justice Anthony Kennedy said in his opinion for the court. He was joined by Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas.

Justice Ruth Bader Ginsburg was in dissent stating that the white firefighters “understandably attract this court’s sympathy. But they had no vested right to promotion. Nor have other persons received promotions in preference to them.”

Justices Stephen Breyer, David Souter and John Paul Stevens signed onto Ginsburg’s dissent, which she read aloud in court Monday.

Kennedy upheld a lower court ruling in favor of New Haven.

Monday’s decision has its origins in New Haven’s need to fill vacancies for lieutenants and captains in its fire department. It hired an outside firm to design a test, which was given to 77 candidates for lieutenant and 41 candidates for captain.

Fifty six firefighters passed the exams, including 41 whites, 22 blacks and 18 Hispanics. But of those, only 17 whites and two Hispanics could expect promotion.

The city eventually decided not to use the exam to determine promotions. It said it acted because it might have been vulnerable to claims that the exam had a “disparate impact” on minorities in violation of the Civil Rights Act of 1964.

The white firefighters said the decision violated the same law’s prohibition on intentional discrimination.

Kennedy said an employer needs a “strong basis in evidence” to believe it will be held liable in a disparate impact lawsuit. New Haven had no such evidence, he said.

The city declined to validate the test after it was given, a step that could have identified flaws or determined that there were no serious problems with it. In addition, city officials could not say what was wrong with the test, other than the racially skewed results.

“The city could be liable for disparate-impact discrimination only if the examinations were not job related” or the city failed to use a less discriminatory alternative, Kennedy said. “We conclude that there is no strong basis in evidence to establish that the test was deficient in either of these respects.”

But Ginsburg said the court should have assessed “the starkly disparate results” of the exams against the backdrop of historical and ongoing inequality in the New Haven fire department. As of 2003, she said, only one of the city’s 21 fire captains was African-American.

Until this decision, Ginsburg said, the civil rights law’s prohibitions on intentional discrimination and disparate impact were complementary, both aimed at ending workplace discrimination.

“Today’s decision sets these paired directives at odds,” she said.

Associated Press writer Katie Nelson in New Haven, Conn., contributed to this report.

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Sonia Sotomayor

 The following are the opinions and  previous rulings that Sonia Sotomayor has made while serving as a judge. She is considered a political centrist by the American Bar Association Journal and other sources and organizations. Several lawyers, legal experts, and news organizations also identify her as someone who has liberal inclinations.

1994 Baseball Strike
On March 30, 1995, as a district judge, Sotomayor issued the preliminary injunction against Major League Baseball, preventing MLB from unilaterally implementing a new Collective Bargaining Agreement and using replacement players. Her ruling ended the 1994 baseball strike after 232 days, the day before the new season was scheduled to begin. The Second Circuit upheld Sotomayor’s decision and denied the owners’ request to stay the ruling.

Copyright
In New York Times Co. v. Tasini, freelance journalists sued the New York Times Company for copyright infringement for the New York Times’ inclusion in an electronic archival database (LexisNexis) the work of freelancers it had published. Sotomayor (who was then a District Judge) ruled that the publisher had the right to license the freelancer’s work. This decision was reversed on appeal, and the Supreme Court upheld the reversal; two dissenters (John Paul Stevens and Stephen Breyer) took Sotomayor’s position.

In Castle Rock Entertainment, Inc. v. Carol Publishing Group, Sotomayor ruled as a district judge that a book of trivia from the television program Seinfeld infringed on the copyright of the show’s producer and did not constitute legal fair use. The United States Court of Appeals for the Second Circuit upheld Sotomayor’s ruling.

Abortion
In the 2002 decision Center for Reproductive Law and Policy v. Bush,[55] Sotomayor upheld the Bush administration’s implementation of the Mexico City Policy, which states that “the United States will no longer contribute to separate nongovernmental organizations which perform or actively promote abortion as a method of family planning in other nations.” Sotomayor held that the policy did not constitute a violation of equal protection, as “the government is free to favor the anti-abortion position over the pro-choice position, and can do so with public funds.”
First Amendment rights In Pappas v. Giuliani,  Sotomayor dissented from her colleagues’ ruling that the NYPD could terminate an employee from his desk job who sent racist materials through the mail. Sotomayor argued that the First Amendment protected speech by the employee “away from the office, on [his] own time,” even if that speech was “offensive, hateful, and insulting,” and that therefore the employee’s First Amendment claim should have gone to trial rather than being dismissed on summary judgment.

In Dow Jones v. Department of Justice, Sotomayor sided with the Wall Street Journal in its efforts to obtain and publish a photocopy of the suicide note of former White House Counsel Vince Foster. Sotomayor ruled that the public had “a substantial interest” in viewing the note and enjoined the Justice Department from blocking its release.

 
Second Amendment Rights
Sotomayor was part of the three-judge Second Circuit panel that affirmed the district court’s ruling in Maloney v. Cuomo Maloney was arrested for possession of nunchakus, which are illegal in New York; Maloney argued that this law violated his Second Amendment right to bear arms. The Second Circuit’s per curiam opinion noted that the Supreme Court has not, so far, ever held that the Second Amendment is binding against state governments. On the contrary, in Presser v. Illinois, a Supreme Court case from 1886, the Supreme Court held that the Second Amendment “is a limitation only upon the power of Congress and the national government, and not upon that of the state.” With respect to the Presser v. Illinois precedent, the panel stated that the recent Supreme Court case of District of Columbia v. Heller (which struck down the district’s gun ban as unconstitutional) “does not invalidate this longstanding principle.” Thus, the Second Circuit panel upheld the lower court’s decision dismissing Maloney’s complaint.

Fourth Amendment Rights
In N.G. ex rel. S.G. v. Connecticut, Sotomayor dissented from her colleagues’ decision to uphold a series of strip searches of “troubled adolescent girls” in juvenile detention centers. While Sotomayor agreed that some of the strip searches at issue in the case were lawful, she would have held that due to the “the severely intrusive nature of strip searches,” they should not be allowed “in the absence of individualized suspicion, of adolescents who have never been charged with a crime.” She argued that an “individualized suspicion” rule was more consistent with Second Circuit precedent than the majority’s rule.

In Leventhal v. Knapek, Sotomayor rejected a Fourth Amendment challenge by a Department of Transportation employee whose employer searched his office computer. She held that “even though [the employee] had some expectation of privacy in the contents of his office computer, the investigatory searches by the DOT did not violate his Fourth Amendment rights” because here “there were reasonable grounds for suspecting” the search would reveal evidence of “work-related misconduct.”

 
Employment Discrimination
Sotomayor was a member of a Second Circuit panel in a high-profile case that upheld without significant comment a lower court decision backing the right of the City of New Haven to throw out its promotional test for firefighters and start over with a new test, because the City believed the test had a “disparate impact” on minority firefighters and it might therefore be subject to a lawsuit from minority firefighters under Title VII of the Civil Rights Act of 1964 if it certified the test results. (No black firefighters qualified for promotion under the test, whereas some had qualified under tests used in previous years.) Several white firefighters who had passed the test, including the lead plaintiff who has dyslexia and had put much extra effort into studying, sued the City of New Haven, claiming that their rights were violated because the test was thrown out. The case was recently heard by the U.S. Supreme Court as Ricci v. DeStefano, and a ruling has not yet been issued.

 
Antitrust
In Clarett v. National Football League Sotomayor upheld the NFL’s eligibility rules requiring players to wait three full seasons after high school graduation before entering the NFL draft. Maurice Clarett challenged these rules, which were part of the collective bargaining agreement between the NFL and its players, on antitrust grounds. Sotomayor held that Clarett’s claim would upset the established “federal labor law favoring and governing the collective bargaining process.” She wrote: “We follow the Supreme Court’s lead in declining to ‘fashion an antitrust exemption [so as to give] additional advantages to professional football players . . . that transport workers, coal miners, or meat packers would not enjoy.’”

 
Civil Rights
In Malesko v. Correctional Services Corp., Sotomayor, writing for the court, supported the right of an individual to sue a private corporation working on behalf of the federal government for alleged violations of that individual’s constitutional rights. Reversing a lower court decision, Sotomayor found that an existing Supreme Court doctrine, known as “Bivens” — which allows suits against individuals working for the federal government for constitutional rights violations — could be applied to the case of a former prisoner seeking to sue the private company operating the federal halfway house facility in which he resided. The Supreme Court reversed Sotomayor’s ruling in a 5-4 decision, saying that the Bivens doctrine could not be expanded to cover private entities working on behalf of the federal government. Justices Stevens, Souter, Ginsburg, and Breyer dissented, siding with Sotomayor’s original ruling.

 
Property Rights
In Krimstock v. Kelly,  Sotomayor wrote an opinion halting New York City’s practice of seizing the motor vehicles of drivers accused of driving while intoxicated and some other crimes and holding those vehicles for “months or even years” during criminal proceedings. Noting the importance of cars to many individuals’ livelihoods or daily activities, she held that it violated individuals’ due process rights to hold the vehicles without permitting the owners to challenge the City’s continued possession of their property.

In Brody v. Village of Port Chester, a takings case, Sotomayor wrote an opinion remanding the case to the district court for further proceedings on whether Brody had adequate notice of the Village’s condemnation proceedings against his property. (A related proceeding in the lower court was called Didden v. Village of Port Chester. The case has drawn attention from libertarian commentators.

Do you agree with these Sotomayor’s opinions and rulings.? Will Sotomayor be confirmed as the next supreme court justice? We will your comments.

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Taxpayer tea parties are as American as it gets. These protests are made up of people of all party affiliations who are fed up with a government that thinks it knows better than the people. Apparently this administration believes government is the solution, unlike Ronald Reagan, who said government is the problem, not the solution. The government couldn’t even run the post office. They couldn’t even manage their own cafeteria. What a joke. Why anyone in the media wants to discredit this movement, especially MSNBC is beyond me. This movement represents a government for the people and by the people, everything America stands for. I’m proud to be an American, whose roots are founded in the Constitution.

CNBC’s Rick Santelli calls the movement inspirational. “I don’t know about cultural phenomenon, but I’ll tell you what,” Santelli said. “I think that this tea party phenomenon is steeped in American culture and steeped in American notion to get involved with what’s going on with our government. I haven’t organized. I’m going to have to work to pay my taxes, so I’m not going to be able to get away today. But, I have to tell you – I’m pretty proud of this.

He also said despite the claims from others in the media, including people at CNBC’s sister network MSNBC, calling the movement “Astroturf,” Santelli declared it a grassroots movement.

“I think from a grassroots standpoint, I’m sure some of the media out there is not going to peg it that way, but isn’t it about as American as it gets – for people to roll their strollers and make their signs and go voice their opinion about the direction of the country?” Santelli said. “Good, bad or indifferent – that’s a great thing. There’s not a lot of countries, of course, that afford their people that, that type of right. It’s a great thing.”

Americans are standing up for their rights before they may not have any.

The scandal in Washington over millions of dollars in corporate bonuses paid last week on Wall Street refuses to go away. President Barack Obama’s recent show of anger over bonuses paid at insurance company AIG was undermined over the weekend by a revelation that his own treasury secretary was ultimately responsible for the mysterious disappearance of a clause that would have limited corporate bonuses.

Obama nevertheless supported Timothy Geithner in a TV interview on Sunday, saying his work wasn’t done yet and that he had no reason to heed growing calls for his resignation. “If he were to come to me, I’d say, ‘Sorry, buddy. You’ve still got the job,’” Obama said in the interview with TV newsmagazine 60 Minutes. “He’s got a lot of stuff on his plate. And he is doing a terrific job.”

The Financial Times Deutschland writes:

“It’s not unusual for a incumbent politician to think of a tax hike as an ‘interesting activity’ — but it is unusual for her to say so in public. German Chancellor Angela Merkel reacted with those words to a resolution by the US House of Representatives that could tax bonus payments for corporate managers, in certain circumstances, at a rate of 90 percent.”

“With that, an idea may now be introduced to German politics that will cause obvious legal problems and shake one bulwark of freedom in our economic system: the reliability of private contracts. Even if bonuses paid to managers of companies heavily supported by government funds might anger the population, they are still a part of legal contracts.”

“The bonus debate is a convenient distraction. It dominates public attention and hides other questions over what the new US government has actually achieved in the banking crisis.”

The conservative daily Die Welt writes:

“The AIG riddle was solved on Sunday evening. After a period of stonewalling, Treasury Secretary Geithner admitted that his department removed the bonus-limitation clause. Denying it would have been more expensive than paying out the bonuses, he argued. Now there are new questions: Did Geithner know the exact size of the bonuses from the start? Did he nevertheless torpedo the clause? And was Barack Obama informed about any of this?”

We are not in support of executives taking bonuses if they have failed.  Is  specifically target one group such as AIG executives and taxing 90% of AIG’s bonus income legal? Is it constitutional? Does contract law matter anymore?

Any thoughts?