Archive for category Constitutional

It’s legal: cops seize cell phone, impersonate owner | Ars Technica

Posted by Michael B. Calyn in Constitutional on July 20, 2012


 

It’s legal: cops seize cell phone, impersonate owner

Court says sending texts using a seized iPhone doesn’t violate privacy rights.

by Timothy B. Lee - July 19 2012, 10:03am CDT

Everyone loves texting.

Arlen

 

In November 2009, police officers in the state of Washington seized an iPhone belonging to suspected drug dealer Daniel Lee. While the phone was in police custody, a man named Shawn Hinton sent a text message to the device, reading, “Hey whats up dogg can you call me i need to talk to you.” Suspecting that Hinton was looking to buy drugs from Lee, Detective Kevin Sawyer replied to the message, posing as Lee. With a series of text messages, he arranged to meet Hinton in the parking lot of a local grocery store—where Hinton was arrested and charged with attempted possession of heroin.

Hinton wasn’t Sawyer’s only target. According to a court decision summing up the facts, “Sawyer spent about 5 or 10 minutes looking at some of the text messages on the iPhone; he also looked to see who had been calling. Many of the text messages that Lee’s iPhone had received and stored were from individuals who were seeking drugs from Lee.”

So Sawyer texted one of the individuals on the list and asked him if he “needed more.” The individual, Jonathan Roden, replied, “Yeah, that would be cool. I still gotta sum, but I could use some more. I prefer to just get a ball, so I’m only payin’ one eighty for it, instead of two Ts for two hundred, that way.” (The court helpfully explained that a “ball” is “a drug weight equivalent to approximately 3.5 grams.”)

But can cops legally do this with seized cell phones? When their cases went to trial, Hinton and Roden both argued that Sawyer had violated their privacy rights by intercepting, without a warrant, private communications intended for Lee.

But in a pair of decisions, one of which was recently covered by Forbes, a Washington state appeals court disagreed. If the decisions, penned by Judge Joel Penoyar and supported by one of his colleagues, are upheld on appeal, they could have far-reaching implications for cell phone privacy.

“No longer private or deserving of constitutional protection”

“There is no long history and tradition of strict legislative protection of a text message sent to, displayed, and received from its intended destination, another person’s iPhone,” Penoyar wrote in his decision. He pointed to a 1990 case in which the police seized a suspected drug dealer’s pager as an example. The officers observed which phone numbers appeared on the pager, called those numbers back, and arranged fake drug purchases with the people on the other end of the line.

A federal appeals court held that the pager owner’s Fourth Amendment rights against unreasonable search and seizure were not violated because the pager is “nothing more than a contemporary receptacle for telephone numbers,” akin to an address book. The court also held that someone who sends his phone number to a pager has no reasonable expectation of privacy because he can’t be sure that the pager will be in the hands of its owner.

Judge Penoyar said that the same reasoning applies to text messages sent to an iPhone. While text messages may be legally protected in transit, he argued that they lose privacy protections once they have been delivered to a target device in the hands of the police. He claimed that the same rule applied to letters and e-mail. (Police would still need to seize or search a phone or computer legally, and phones are much easier for cops to seize than computers, which generally require a warrant.)

“On his own iPhone, on his own computer, or in the process of electronic transit, Hinton’s communications are shielded by our constitutions,” he wrote, referring to both the state and federal constitutions. “But after their arrival, Hinton’s text messages on Lee’s iPhone were no longer private or deserving of constitutional protection.” Penoyar rejected Roden’s privacy arguments on similar grounds.

Unsettled law

Mobile phones exist in a constitutional grey area. The law has well-developed doctrines protecting the privacy of our desktop computers, landline telephones, and filing cabinets. But modern cell phones perform all of these functions, and more. If the police are free to rummage through any cell phone that falls into their hands, every arrest would automatically give the police access to a treasure trove of private data that they would otherwise need a warrant, based on probable cause, to obtain.

The Washington State decision is not unprecedented. Last year, the California Supreme Court ruled that no warrant was required for the police to peruse a cell phone that was confiscated after its owner tried to sell ecstasy to an undercover police officer. In that case, the police obtained a text message that seemed to confirm the government’s case against the suspect. Two justices of the California Supreme Court dissented from the ruling.

One judge dissented from the Washington State rulings as well. “Sawyer engaged in a continuing search when he first searched the contacts list on Daniel Lee’s iPhone to find Hinton’s phone number,” wrote Judge Marywave Van Deren in her dissent. Sawyer “used Lee’s iPhone to send and receive messages from Hinton. Under these circumstances, I would hold that Sawyer was required to obtain a search warrant.”

In a slightly different context, the Obama administration has also held that the contents of cell phones enjoy constitutional protection. Earlier this year, the Department of Justice filed a brief in a Maryland case arguing that Baltimore police had violated a man’s constitutional rights—including his Fourth Amendment right against unreasonable search and seizure—when they seized his phone and deleted videos he had taken of the officers’ conduct.

 It’s legal: cops seize cell phone, impersonate owner | Ars Technica.

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Under Citizens United, Public Employees Are Compelled to Pay for Corporate Political Speech – NYTimes.com

Posted by Michael B. Calyn in Constitutional on July 13, 2012


How Pensions Violate Free Speech

By BENJAMIN I. SACHS
Published: July 12, 2012

Cambridge, Mass.

 

Dominic Clifford

A CENTRAL principle of American political life is that everyone gets to choose which candidates to support. The idea that the government could force us to support those we oppose is anathema. But this unacceptable state of affairs is one of the unintended consequences of the Supreme Court’s decision in the 2010 Citizens United case.

That’s because the vast majority of people who work in the public sector — state, local and federal employees — are required to make contributions to a pension plan. Nearly all states make participation in a pension plan mandatory and a “condition of employment” for public employees. To get and keep your job with the government, you have to give some of your paycheck to the pension plan.

Public pensions, moreover, are so-called defined benefit plans, which means that employees don’t have a say in how their mandatory contributions are invested. The employees cannot request, for example, that their money be used only to buy government bonds or that it be invested only in certain mutual funds or only in select corporations.

Instead, the employees’ money is invested according to whatever decisions the pension plan’s trustee makes. And, not surprisingly, pension plans invest heavily in corporate securities: in 2008, public pensions held about $1.15 trillion in corporate stock.

Here’s the problem. In its Citizens United decision, the Supreme Court held that companies have a First Amendment right to make electoral expenditures with general corporate treasuries. And they’ve done so, with relish, pouring millions into the political system.

What Citizens United failed to account for, however, is that a significant portion of the money that corporations are spending on politics is financed by equity capital provided by public pension funds — capital contributions that the government requires public employees to finance with their paychecks.

This consequence of Citizens United is perverse: requiring public employees to finance corporate electoral spending amounts to compelled political speech and association, something the First Amendment flatly forbids.

Contrast this situation with how the court treats political spending by unions. In many states, public employees are required to pay dues to a labor union. If the public employees union were to spend any of the money raised through dues on politics, the court has ruled, the dues requirement would amount to forced political speech and association. To prevent this First Amendment violation, the court has held that no union may use an employee’s dues for political purposes if the employee objects.

The same should be true for pension funds and corporate politics. In a world where corporations can use their general treasuries for political spending, no government should be allowed to require employees to finance the purchase of corporate securities through a pension plan, unless the government provides those employees with a meaningful way to object to financing corporate politics.

The good news is that the rules governing union dues and political spending provide a road map for restructuring public pensions in order to bring them back into conformity with the First Amendment.

Here’s one way it could work: Pension plans would determine the number of employees that object to financing corporate political spending. They would then negotiate “opt out” rights with the corporations in which they invest. These corporations would calculate the percentage of their annual expenditures that go to politics and promise to return to the pension plan an amount equal to the objecting employee’s pro rata share of the corporation’s political budget.

Whatever the route to reform, however, public pension plans need to ensure that employees are not compelled to finance corporate political speech. Until they do, these pension funds will be vulnerable to the challenge that they are violating the First Amendment.

 Under Citizens United, Public Employees Are Compelled to Pay for Corporate Political Speech – NYTimes.com.

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They need their own Constitutional amendment. By Paul G. Cassell – How Can We Fix the Constitution? – Slate Hive

Posted by Michael B. Calyn in Constitutional on June 23, 2012


Standing for Victims

They need their own Constitutional amendment.

By Paul G. Cassell Posted Thursday, June 14, 2012

Trayvon Martin

The legal options of Tracy Martin and Sybrina Fulton, parents of Trayvon Martin, would be affected by a Victims’ Rights Amendment

Kevork Djansezian/Getty Images.

This month, some of Slate’s legal eagles are proposing their favorite Constitutional amendments, in the service of our effort, with Me the People author Kevin Bleyer, to rewrite the founding document. Here are proposals about theright to trial by jury, protecting informational privacy, amending the Constitution by national referendum, electing the attorney general, moving up the date of the presidential inauguration,restoring the balance of war powers, Supreme Court term limits, forcing Congress to fix the rules of congressional procedure, a right to health care, a right to vote, campaign finance, and elections.

Victims’ Rights (New Amendment)

Our Constitution should include a Bill of Rights for crime victims, along the lines of the Victims’ Rights Amendment which has been introduced in Congress. This amendment is rooted in the simple idea that victims of crime deserve a role in the criminal process. It matches constitutional protections for criminal defendants with rights for crime victims. They would be guaranteed the rights to notice of court hearings, to attend those hearings, and to speak when appropriate, for example, at proceedings for bail, plea bargains, and sentencing. Victims would also have the right to see their cases proceed without unreasonable delay, to be notified when an offender is released or escapes, to have judges consider their safety before granting bail, and to restitution from a convicted offender.

These rights restore victims to their original place in the criminal justice system. When the Constitution was drafted, victims could actively pursue criminal cases, even serving as their own private prosecutors. The diminishment of their role over time shortchanged their interest in the outcome of government-determined prosecutions. Prompted by the victims’ rights movement of the last few decades, more than 30 states have enshrined victims’ rights in their own constitutions since 1988. And in 2004, Congress passed the Crime Victims’ Rights Act, which gave victims rights in federal court.

The growing number of state amendments, along with the federal law, reflects a growing national consensus that victims belong inside the criminal justice process—with a voice in decision-making. And yet, as Harvard Law professor Laurence Tribe has observed, victims’-rights provisions have too often failed in the face of bureaucratic habit, traditional indifference, or the potential for conflict with the rights of the accused—even when those rights are not genuinely threatened. In the late 1990s, a study by the National Institute of Justice found that “large numbers of victims are being denied their legal rights.” For example, even in several states identified as giving “strong protection” to victims’ rights, fewer than 60 percent of victims were notified when defendants were sentenced and fewer than 40 percent were notified of the pretrial release of the defendant. A follow-up analysis found that racial minorities were the least likely to be afforded their rights. Former Attorney General Janet Reno concluded that the current “haphazard patchwork” of rules is “not sufficiently consistent, comprehensive or authoritative to safeguard victims’ rights.” At the federal level, in 2008 the General Accountability Office gave the Crime Victims’ Rights Act a mixed review for efficacy. In court, cases testing the law, have produced uneven results and even crushing defeats. For example, in 2008 the parents of a murder victim in Salt Lake City were blocked from delivering a victim impact statement at the sentencing of the man convicted of illegally selling the murder weapon to her killer.

The Victims’ Rights Amendment to the Constitution was first proposed by President Bill Clinton in 1996 (the only constitutional amendment endorsed by his administration) and has since garnered congressional support across the ideological spectrum, from Republican Sens. Orrin Hatch and Jon Kyl to Democrats Joseph Biden and Dianne Feinstein. Critics have focused their attacks not on the amendment’s underlying principles but rather on the mechanics of implementation. Some opponents have argued that the rights of crime victims do not belong to be in the Constitution because they do not concern the country’s political architecture. Yet the amendment promotes the grand theme of the Bill of Rights—protecting citizens against governmental misconduct—while also advancing the goals of later amendments that increase citizen participation in governmental processes (as I argue at greater length here). Nor does the amendment challenge the Warren Court rulings that expanded the protections for criminal defendants, as the ACLU has charged. The idea is merely that we should make a national commitment to ensuring that victims receive equal treatment.

In an earlier era, judges might have been able to informally accommodate victims’ interests. But today the coin of the criminal justice realm is federal constitutional rights. Without this level of recognition, victims inevitably become second-class citizens, with judges too often giving automatic precedence to the asserted claims of defendants rather than searching for reasonable alternatives that can accommodate the interests of both sides. To change that, here’s the Victims’ Rights Amendment, as proposed in the current Congress:

SECTION 1. The rights of a crime victim to fairness, respect, and dignity, being capable of protection without denying the constitutional rights of the accused, shall not be denied or abridged by the United States or any State. The crime victim shall, moreover, have the rights to reasonable notice of, and shall not be excluded from, public proceedings relating to the offense, to be heard at any release, plea, sentencing, or other such proceeding involving any right established by this article, to proceedings free from unreasonable delay, to reasonable notice of the release or escape of the accused, to due consideration of the crime victim’s safety, and to restitution. The crime victim or the crime victim’s lawful representative has standing to fully assert and enforce these rights in any court. Nothing in this article provides grounds for a new trial or any claim for damages and no person accused of the conduct described in section 2 of this article may obtain any form of relief.

SECTION 2. For purposes of this article, a crime victim includes any person against whom the criminal offense is committed or who is directly harmed by the commission of an act, which, if committed by a competent adult, would constitute a crime.

SECTION 3. … This article shall take effect on the 180th day after the date of its ratification.

 They need their own Constitutional amendment. By Paul G. Cassell – How Can We Fix the Constitution? – Slate Hive.

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The Constitution should make party primaries open to all voters. By David S. Law – How Can We Fix the Constitution? – Slate Hive

Posted by Michael B. Calyn in Constitutional on June 23, 2012


Where’s the Party?

The Constitution should make party primaries open to all voters.

By David S. Law | Posted Thursday, June 21, 2012

 

Voters cast their ballots voting booth during a Republican primary

Voters cast their ballots voting booth during a Republican primary

Photograph by Jessica Kourkounis/Getty Images.

This month, some of Slate’s legal eagles are proposing their favorite constitutional amendments, in the service of our effort, with Me the People author Kevin Bleyer, to rewrite the founding document. Here are proposals about theright to trial by jury, protecting informational privacy, amending the Constitution by national referendum, electing the attorney general, moving up the date of the presidential inauguration,restoring the balance of war powers, Supreme Court term limits, forcing Congress to fix the rules of congressional procedure, a right to health care, a right to vote, victims’ rights, campaign finance,elections, and the death penalty and solitary confinement.

Open Primaries (Article I)

For better or for worse, political parties are an essential part of modern democracy. In this country and elsewhere, they make large-scale political competition possible. The majority of the world’s constitutions recognize their importance: Two-thirds of constitutions today, for example, contain an explicit right to form parties. Yet the U.S. Constitution doesn’t acknowledge their existence. In fact, the Framers swept the idea of political parties even further under the constitutional rug than slavery (which they at least addressed obliquely). Their failure to confront the prospect of party politics quickly proved disastrous. They designed a system in which presidential and vice-presidential candidates from the same party could tie one another, first in the Electoral College and then again in the supposedly tie-breaking House of Representatives—which is precisely what happened in the election fiasco of 1800. While the 12th Amendment was soon adopted to prevent that specific scenario from repeating itself, the underlying defect remains unresolved: The design of the Constitution simply does not factor in the consequences of the party system.

The result is that our Constitution fails to describe how our system of government actually operates. And it is operating in increasingly dysfunctional ways that the Framers neither intended nor anticipated. In the name of preventing tyranny, the Constitution sets out a system of government that is designed to deliver a good deal of gridlock by dividing up power along multiple dimensions—both horizontally, among the branches of government (the “separation of powers” with “checks and balances”), and vertically, between the national government and the states (“federalism”). But adding politically divided government to the mix, as occurs whenever one party controls the presidency and the other controls the House, the Senate, or both, takes things to a whole new level of paralysis and conflict.

This constitutional design flaw is aggravated by the increasing distance between the parties. Take it from the political scientists who have devised fancy statistical techniques for studying this exact phenomenon: Political polarization really is getting worse. Some relatively moderate politicians are heading for the exits on their own, while others are discovering that the middle of the road is increasingly a place where you get run off the road by your own party. That’s an especially big problem in states like Utah or Texas, where the real action takes place in the primary.

The Supreme Court, alas, has been rather unhelpful on this front. It has ruled that parties have a constitutional right to decide who gets to participate in their candidate selection processes, and it has struck down “blanket primaries,” in which all candidates from all parties are listed on a single ballot and voters can choose the candidate they most prefer from any party. If that is how the court is going to interpret the Constitution, then it is time to change the Constitution.

A constitutional guarantee of open primaries would accomplish a number of things. It would help to keep political polarization in check. It would enhance voter choice by giving people the opportunity to pick the candidate they most prefer, regardless of party affiliation. And it would give us a Constitution that reflects reality instead of pretending that political parties don’t exist. One little sentence could do the trick:

No person shall be denied the opportunity to vote in a primary election for the office of Senator, Representative, President, or Vice-President, on account of his or her party affiliation or lack thereof.

 The Constitution should make party primaries open to all voters. By David S. Law – How Can We Fix the Constitution? – Slate Hive.

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EFF Says Cyber Security Bills Open Door To Government, Corporate Abuse | threatpost

Posted by Michael B. Calyn in Constitutional, Cyber Legislation, Cyber Security, Government, Security, Social, Technology on March 24, 2012


March 24, 2012, 7:30AM

EFF Says Cyber Security Bills Open Door To Government, Corporate Abuse

 

by Brian Donohue

EFF logo with text

The Electronic Frontier Foundation (EFF) is sounding alarms about a collection of overly vague cyber-security bills making their way through Congress.

EFF looked at two bills making their way through Congress: The Cybersecurity Act of 2012 (S. 2105), sponsored by Senator Joseph Lieberman (I-CT) of Connecticut and the Secure IT Act (S. 2151), sponsored by Senator John McCain (R-AZ) . The digital rights group claims that the quality of both bills ranges from “downright terrible” to “appropriately intentioned.” Each, however, is conceptually similar and flawed, EFF said. 

With public awareness about cyber legislation high after the dramatic failure of Stop Online Privacy Act (SOPA), interest in- and skepticism of new cybersecurity legislation is on the rise.

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·         Weak RSA Keys Plague Embedded Devices, But Experts Caution Against Panic

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All three bills seek to facilitate cooperation among branches of the U.S. government and between the government and the private sector. Their failing, according to a blog post written by EFF Staff Technologist, Dan Auerbach and EFF Senior Staff Attorney, Lee Tien is in failing to define “the threats which are being defended against and the countermeasures that can be taken against those threats.”

A lack of concrete definitions and transparency could give way to expansive interpretations of any bill that passes, leading to government and corporate abuses, which, in turn, could impinge upon civil liberties, EFF warned.

As an example, Auerbach and Tien note that the Lieberman bill defines a “cyber security threat indicator” as any action that might be construed as “a method of defeating a technical [or operational] control.” That overly broad definition, EFF notes, could apply to anything from a DDoS attack to a port scan to the use of encryption or an anonymization service like ToR to protect the privacy of online activity and communications. Everything would depend on how the government and law enforcement chose to interpret it.

In an e-mail conversation with Threatpost, Auerbach of EFF characterized the bills as “alarming.” Of particular concern: a section in both the Lieberman bill and the McCain bills that authorizes monitoring by private firms of any traffic that transits their networks. Ostensibly intended to facilitate private-public information sharing, the passage would grant complete private sector immunity for data monitoring and sharing practices. Private entities would be unbound from the Wiretap Act and other legal limits and immunized against a swath of questionable monitoring practices, EFF claims.

Furthermore, Auerbach and Tien worry that the bills’ definition of a “cyber security threat” is too broad, and could cover everything from stealing passwords from a secure government server to scanning a network for software vulnerabilities. Similarly, the bills calls for more ISP traffic analysis and monitoring could bring about more civil liberties violations. For example, ISPs could simply block Tor, cryptographic protocols, or traffic on certain ports under the guise of defensive countermeasures, the EFF speculated.

The two online privacy experts also worry that the bills do too little to balance the public interest against the government’s need to secure the Internet.

“The cyber security bills completely skirt the issue of the intelligence community stockpiling so-called “zero-days” — new and unknown software vulnerabilities — for offensive cyber attack purposes,” Auerbach said via email. “Allowing the intelligence community to hold on to these vulnerabilities without patching them makes all of us less safe, and a good cyber security bill would explicitly disallow this practice.”

That’s a potent concern these days, after the security firm Vupen raised the ire of a number of security experts for their controversial business model which allegedly involves the buying and selling of these zero-days to the highest bidder, malicious or otherwise.

Rather than scrap the bills altogether, the EFF is calling on Senators to open up the conversation about the pending bills as they refine them. To create a better bill, the EFF believes specificity is key. Detractors will say that specificity limits the life-span of such bills, but the EFF sees this as an advantage. A short-living bill would force legislators to revisit it and make modifications necessary to address a rapidly changing and dynamic security ecosystem.

 EFF Says Cyber Security Bills Open Door To Government, Corporate Abuse | threatpost.

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FCC finds AT&T’s purchase of T-Mobile not in the public interest | ITworld

Posted by Michael B. Calyn in Business, Constitutional, Economy, Employment, Entertainment, Opinion, Patents, Perspective, Politics, Society on November 22, 2011


FCC finds AT&T’s purchase of T-Mobile not in the public interest

The proposed $39 billion deal now goes to a hearing before an administrative law judge at the FCC

By Grant Gross, IDG News Service |  Networking, AT&T, FCC 1 comment

November 22, 2011, 4:16 PM —

AT&T billboard

flickr/rick

The U.S. Federal Communications Commission’s staff has found AT&T’s proposed $39 billion acquisition of rival T-Mobile USA to be contrary to the public interest, with officials there saying the deal would result in the largest single concentration in the U.S. mobile market in history.

The FCC, in a draft order released Tuesday, found the merger to be anticompetitive, echoing a similar conclusion in August by the U.S. Department of Justice. The FCC is now required to send the merger request to a hearing before an administrative law judge, where AT&T and T-Mobile USA will have the opportunity to argue against the FCC’s conclusion, FCC officials said.

The merger would result in unprecedented concentration of market power in the mobile market, FCC officials said in a press briefing in which they spoke under the condition they not be named.

At the same time, the FCC approved, with conditions, AT&T’s application to purchase $1.9 billion worth of spectrum in the lower 700MHz band from Qualcomm. The 12MHz of Qualcomm spectrum would cover 300 million U.S. residents, including 70 million people in New York, Boston, Philadelphia, Los Angeles and San Francisco.

AT&T said it was disappointed with the FCC’s decision. “It is yet another example of a government agency acting to prevent billions in new investment and the creation of many thousands of new jobs at a time when the U.S. economy desperately needs both,” Larry Solomon, AT&T’s senior vice president of corporate communications, said in a statement. “At this time, we are reviewing all options.”

FCC officials said they found no evidence that AT&T would roll out its 4G mobile broadband service faster if it was allowed to buy T-Mobile, as the company has suggested. The FCC’s staff also rejected AT&T promises saying the merger would lead to tens of thousands of new jobs. FCC officials instead said it would be likely to lead to “massive” layoffs as the two companies cut duplicative jobs.

Public Knowledge, a digital rights group opposed to the merger, praised the FCC’s decision. FCC Chairman Julius Genachowski “is to be applauded for standing up to AT&T’s lobbying machine and moving forward to a hearing designation,” said Gigi Sohn, Public Knowledge’s president.

An administrative hearing will allow AT&T to present additional evidence showing how it believes the merger will create jobs, Sohn said. That result “would run contrary to every other takeover AT&T has engineered,” she said. “There is ample evidence in the record that this deal would destroy jobs.”

The FCC’s decision to refer the merger to a hearing means that the agency has “substantial and material” questions about the deal, added Andrew Jay Schwartzman, senior vice president and policy director of Media Access Project, a nonprofit law firm focused on digital rights.

The hearing “means the FCC has found merit in our arguments that a combined AT&T/T-Mobile will create a duopoly in the wireless market which will increase prices for service and for handsets,” he said.

Grant Gross covers technology and telecom policy in the U.S. government for The IDG News Service. Follow Grant on Twitter at GrantGross. Grant’s e-mail address is grant_gross@idg.com.

 FCC finds AT&T’s purchase of T-Mobile not in the public interest | ITworld.

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Obama’s healthcare law appealed to Supreme Court | Reuters

Posted by Michael B. Calyn in Constitutional on September 28, 2011


Obama’s healthcare law appealed to Supreme Court

Opponents of the proposed U.S. health care bill are pictured during a rally outside the U.S. Capitol Building in Washington, March 21, 2010. REUTERS/Jason Reed

 

 

By James Vicini

WASHINGTON | Wed Sep 28, 2011 12:46pm EDT

 

(Reuters) – Twenty-six states and a small business group appealed on Wednesday to the U.S. Supreme Court seeking to strike down all of President Barack Obama’s signature 2010 healthcare law.

 

The states and the National Federation of Independent Business said in separate appeals the entire law should be invalidated because Congress exceeded its powers requiring that Americans buy health insurance or face a penalty.

They urged the high court to quickly decide the issue in its upcoming term, which begins next week and lasts through June 2012. The Obama administration also is expected to ask the Supreme Court to decide the healthcare law.

The National Federation of Independent Business, a group representing 350,000 U.S. small businesses, had joined the states group led by Florida, in challenging the law in court.

A U.S. appeals court in Atlanta in August declared unconstitutional the individual insurance requirement, but refused to strike down the entire law.

The ruling by the appeals court in Atlanta conflicted with rulings by other appeals courts that have upheld the law or have rejected legal challenges, including a lawsuit by the state of Virginia that was dismissed earlier this month on procedural grounds.

The law, passed by Congress and signed by Obama in 2010 after a bruising political battle, is expected to be a major issue in the 2012 elections as Obama seeks another four-year term. The major Republican presidential candidates oppose it.

EXPANDING COVERAGE

Obama, a Democrat, has championed the law as a major accomplishment of his presidency and as a way to try to slow soaring healthcare costs while expanding health insurance coverage to the more than 30 million Americans without it.

The Supreme Court long has been expected to have the final word on the law’s constitutionality. The dispute has important legal, political and financial implications for companies in the healthcare field.

Ohio Attorney General Mike DeWine said the states filed their appeal and that it was time for a Supreme Court ruling.

“Individual citizens who have to plan for their families’ futures, businesses that might be considering adding new jobs, and state governments across the country that are looking at enormous new burdens need to know what the rules are,” he said.

Legal experts have said the nine-member Supreme Court, with a conservative majority and four liberals, most likely will be closely divided on whether the individual mandate requiring insurance purchases exceeded the power of Congress.

The Obama administration earlier this week said it decided against asking the full U.S. Appeals Court for the 11th Circuit to review the August ruling by a three-judge panel of the court that found the insurance requirement unconstitutional.

That decision cleared the way for the administration to go to the Supreme Court. The administration has said it believes the law will be upheld in court while opponents say it represents an unconstitutional encroachment of federal power.

 Obama’s healthcare law appealed to Supreme Court | Reuters.

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Posted by Michael B. Calyn in Constitutional, Opinion, Wall Street on September 25, 2011


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80 arrested at ‘Occupy Wall Street’ protest – US news – Life – msnbc.com

Posted by Michael B. Calyn in Constitutional, Opinion, Wall Street on September 25, 2011


Police corral marchers near stock exchange; demonstration enters 2nd week

Below:

 

Image: Protester arrested in New York City

Tina Fineberg  /  AP

Police carry away a demonstrator Saturday in a march organized by Occupy Wall Street in New York. About 80 were arrested.

msnbc.com staff and news service reports

updated 9/24/2011 10:12:53 PM ET

NEW YORK — Police arrested about 80 demonstrators near the New York Stock Exchange on Saturday as they marched through lower Manhattan.

The “Occupy Wall Street” protest is entering its second week. Several hundred protesters have been camped out at New York’s private Zucotti Park, blocks from the stock exchange.

On Saturday afternoon, several hundred marched north toward Union Square.

Demonstrators said Saturday that they are protesting bank bailouts, the mortgage crisis and Georgia’s execution of Troy Davis. They said the protests were inspired by demonstrations in Egypt and Spain.

The marchers carried signs spelling out their goals. “Tax the rich,” one sign said. “We Want Money for Healthcare not Corporate Welfare,” read another.

“Occupy Wall Street,” they chanted, “all day, all week.”

Organizers said their intent was to occupy Wall Street but, with metal barricades and swarms of police officers in front of the New York Stock Exchange, the closest they could get was Liberty Street, about three blocks away.

The first arrest came shortly after noon near the stock exchange. Several blocks away, another protester, who identified himself as Robert Stephens, was arrested after kneeling in the middle of the street outside the Chase Bank building.

“That’s the bank that took my mother’s home,” said Stephens, a law student, before being handcuffed.

At Manhattan’s Union Square, police tried to corral the demonstrators by using orange plastic netting. Some of the arrests were filmed and activists posted the videos online.

Protest organizers told The New York Times that about 85 people had been arrested and that about five were struck with pepper spray.

Among those was Chelsea Elliott, 25, who said that she was sprayed after shouting “Why are you doing that?” as an officer arrested a protester at East 12th Street.

“I was on the ground sobbing and couldn’t breathe,” she said.

Police say the arrests were mostly for blocking traffic. Charges include disorderly conduct and resisting arrest. But one demonstrator was charged with assaulting a police officer. Police say the officer involved suffered a shoulder injury.

Protest spokesman Patrick Bruner criticized the police response as “exceedingly violent” and said the protesters sought to remain peaceful.

Many protesters returned to their encampment Saturday night, where they were joined by new arrivals.

“Right now we are more determined than ever that what we are doing is necessary and correct,” said Patrick Bruner, a spokesman for the protesters, told the Times.

 80 arrested at ‘Occupy Wall Street’ protest – US news – Life – msnbc.com.

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Why the fight to save Troy Davis was doomed – War Room – Salon.com

Posted by Michael B. Calyn in Constitutional, Opinion, Perspective on September 24, 2011


War Room

THURSDAY, SEP 22, 2011 11:15 ET

Why the fight to save Troy Davis was doomed

The right will never be convinced by an argument hinging on “doubt”

BY ALEX PAREENE

 

 

Why the fight to save Troy Davis was doomed

Reuters/Tami Chappell

Troy Davis was killed last night by the state of Georgia, for the murder of off-duty police officer Mark MacPhail. His conviction was based solely on eyewitness testimony, and many of those eyewitnesses later recanted their stories. There was never any physical evidence linking him to the crime. But he lost numerous appeals and was finally denied a stay of execution by the Supreme Court.

I would think, if the nation is unwilling to abandon the death penalty (in large part because the death penalty remains quite popular), that it would be reasonable to at least restrict its usage further. Maybe, for example, it should be prohibited in cases where there is no physical evidence tying the defendant to the crime. But an appeal to “reason” is impossible when one side is arguing from a position of doubt and skepticism and the other side simply doesn’t care.

I looked for right-wing responses to the execution and found that it simply wasn’t much of a story on their side. The National Review Onlineand the Weekly Standard seem wholly uninterested in it, leaving the defense of the execution to the conservative movement’s left-baiting id. Like Ann Coulter, who endlessly repeated the shibboleth “cop-killer,” and former HuffPo troll Greg Gutfeld, who focused, as always, on the true villains in this story: Hollywood celebrities who surely only adopted a cause because it’s fashionable. (It is fashionable to oppose the execution of a man whose guilt is in doubt!)

Erick Erickson wrote a couple of posts on Davis last night, including an open thread asking how the execution would affect “the horserace” and one revisiting the prosecution’s case and declaring it airtight, without actually addressing any of the flaws in how that case was put together and presented. There was evidence that implicated Davis — he might have been guilty! — but the point, the entire argument, is that by no means was this man so patently, self-evidently guilty that Georgia should feel comfortable killing him. The point is doubt, but one side believes “doubt” is a moral failing.

The New Republic, meanwhile, reprinted an old magazine piece criticizing death penalty opponents for focusing on death-row inmates whose guilt is in doubt rather than “devoting more time and energy to more significant … problems with capital punishment.” (There’s a case to be made that anti-death penalty activists should behave more like antiabortion organizations, attacking the policy by lobbying for state-by-state piecemeal restrictions rather than campaigning nationally for a blanket ban. There is also a case to be made that they’re already doing this, with notable success in most states that aren’t part of the old Confederacy.)

The sad fact is, the Davis case is an example of the system working precisely as it was designed to work. This is why the Supreme Court and the Georgia Board of Pardons denied his pleas for clemency. There was no violation of the rules governing capital punishment — the rules simply don’t protect people who may have been wrongfully convicted, if a jury was convinced by meager and questionably obtained “proof.”

Here it devolves again into debates between tribes that aren’t speaking the same language. The liberal argument that it’s hypocritical to call yourself pro-life and support the death penalty is facile – an evangelical Christian quite easily distinguishes between an innocent person killed before birth and a man who had a chance at life and failed to live righteously — and while the argument that those who don’t trust the government to regulate business or provide healthcare shouldn’t trust it to put men to death is a bit more compelling, guilty verdicts are meted out by juries of citizens, not “bureaucrats,” and even the most staunch anti-government conservative respects the state’s right to enforce “law and order.”

So, sadly, I don’t think the execution of Troy Davis will have much effect on the national “conversation” about the morality of capital punishment or the glaring flaws in America’s system of justice. Because while it’s very reasonable to argue that “we” should only kill someone if we’re really, really, really sure they did it, the modern American conservative is really, really, really sure about everything.

 Why the fight to save Troy Davis was doomed – War Room – Salon.com.

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