Tuesday, December 30, 2008

Caveat Madoff

Typical of the collectivist/statist reactions to the mortgage disaster, bank failures, automaker calamity, stock plunge and other recent government-caused debacles is an email I received today from a “wealth management” type at a prominent brokerage firm.

He opined that “[t]he fraud perpetuated by Mr. Madoff is truly astonishing in its size (larger than both Enron and WorldCom) and scope and I hope this will be a wake up call to regulators that the hedge fund industry is in need of some increased oversight, which would be an improvement over the little oversight it currently has. The current regulatory bodies had received reports of possible issues with this fund for years and did nothing about it.” (Emphasis mine.)

More regulation?

More bureaucratic incompetence?

More government control over our lives?

More poison that caused the disease?

It is the plethora of government regulation of virtually every aspect of our lives, from agriculture to zoning, that has caused depressions, recessions, inflation, deflation, and stagflation, stifled competition, reduced productivity, hindered growth, and turned what could have been a millennium-long military/financial/economic megapower into a hapless debtor nation reduced to having our President beg former nomads to increase pumping oil they stole from their civilized betters.

Pervasive government regulation has leached out of most Americans their duty, indeed their will, to look out for themselves, to do their own homework, to act responsibly in buying everything from antipasto to Zantac.

In other words, to take responsibility for their own lives.

The well-know expression caveat emptor means “let the buyer beware.”

Unfortunately, it appears too many investors did not caveat Madoff because they accept the principle of government regulation of our lives. Either they don’t realize that government has a voracious appetite for power, or they don’t care. They abdicate responsibility for their own lives, vesting them in the hands of oft-incompetent and indifferent bureaucrats. Most individuals, organizations and institutions that have been taken to the cleaners by Madoff have no one to blame but themselves—for believing in government regulation, for thinking the SEC was interested in protecting them, and, worst of all, for leaving responsibility for their lives in the hands of others.

While Madoff should spend the rest of his life in prison, all he did was steal money.

That’s nothing compared to investors committing suicide

Friday, December 19, 2008

Taliban John Walker Lindh Better Not Hold His Breath

Yet again the American turncoat Taliban John Walker Lindh is asking President Bush for clemency.

Yet again, the President will deny it, making as sure as the outgoing Chief Executive can that Walker serves the entire twenty-year sentence he agreed to.

At this link--http://www.henrymarkholzer.citymax.com/talibanjohn.html (which may have to be pasted into one's internet-access address line)--there is extensive reporting and legal analysis of the sordid case of Taliban John, including scathing criticism of the government for not indicting him for treason. These are the essays' topics:

Treason.
Relevant Facts.
What to Do With Fighter Taliban John Walker?
Essential Elements.
Overt Acts.
"Sleeper" Charge Possible.
Reading Bush's Mind.
Reading Ashcroft's Mind.
The Charges.
The Indictment.
The Bail Hearing.
Reading Brosnahan's Mind.
The Discovery Motion.
The Conventional Wisdom.
Why the Government Was Wrong in Not Indicting Taliban John for Treason.
Taliban John is Indictable and Convictable for Treason.
The Desperate Defense.
The Noose Tightens.
Another Defense Stretch.
Journey's End.
The Good Guys Won Anyhow.

Viewing the Walker case in its entirely, his, his parents', and his lawyers' plea for executive clemency is not merely hopeless, it is obscene.

Monday, December 15, 2008

"A Banker With A Heart"

Ayn Rand began writing her magnum opus, the novel Atlas Shrugged, in 1943, some sixty-five years ago. It was published in 1957, fifty-one years ago. Atlas Shrugged was prescient in its description of an America gone to ruin because of rampant altruism, collectivism and statism, and apart from its many other virtues Rand’s novel reads as though it was written today.

Part of the story involves a factory, Twentieth Century Motor Company, which in its heyday produced quality motors. The founder died. His Marxist children took over, implementing as the organizing principle of their operation the credo “from each according to his ability, to each according to his need”—and went bankrupt. Others took over the factory with a loan from Community National Bank, headed by one Eugene Lawson, a “banker with a heart,” who explained why he made the loan:

“They [the borrowers] were perfectly good men. They were a perfectly sound risk—though, of course, I am speaking in human terms, not in the terms of cold cash, which you are accustomed to expect from bankers. I granted them the loan for the purchase of that factory, because they needed the money. If people needed money, that was enough for me. Need was my standard, Miss Taggart. Need, not greed. My father and grandfather built up the Community National Bank just to amass a fortune for themselves. I placed their fortune in the service of a higher ideal. I did not sit on piles of money and demand collateral from poor people who needed loans. The heart was my collateral. Of course, I do not expect anyone in this materialistic country to understand me. The rewards I got were not of a kind that people of your class, Miss Taggart, would appreciate. The people who used to sit in front of my desk at the bank, did not sit as you do, Miss Taggart. They were humble, uncertain, worn with care, afraid to speak. My rewards were the tears of gratitude in their eyes, the trembling voices, the blessings, the woman who kissed my hand when I granted her a loan she had begged for in vain everywhere else.”

The bank crashed.

Sound familiar?

Sunday, December 14, 2008

Questions About Obama's Citizenship: Part IV

For the past several months the Internet has been awash in erroneous information about legal cases that have been brought about Obama's citizenship. The reports and commentary have ranged from the merely misinformed to the grossly ridiculous.

All of it has underscored how little most Americans know about the judicial system in general and the Supreme Court of the United States in particular.

The Supreme Court's principal constitutional duty is to interpret federal statutes and rule on the constitutionality of state and federal laws and official conduct.

In its latter role, it is the nation's ultimate arbiter of what does and does not violate the Constitution of the United States of America.

Thus, cases reach the Supreme Court from two sources: state courts and federal courts.

On the state side, cases begin in a trial court, progress to an intermediate appellate court, and may then be heard by the state's highest court from whose decision Supreme Court review may be sought.

On the federal side, cases begin in United States District Courts, with appeals taken to United States Courts of Appeal from whose decision Supreme Court review may be sought.

Either way, although technically some cases must be heard by the Supreme Court, as a practical matter the only way to obtain review in that forum is if it is granted.

The knock on the Supreme Court's door is called a Petition for a Writ of Certiorari, which to be granted requires a vote of at least four justices. The overwhelming number of petitions are denied. Of those granted, the state and federal governments are often parties. As any appellate practitioner knows, it is extremely difficult to obtain Supreme Court review.

Which brings us to the "Obama citizenship" cases.

Of the cases which have been brought (not those still a mere gleam in a fundraiser's eye), few have cleared the trial court--let alone have been adjudicated in an appellate court. Apparently, Beck's has (where he was held to lack standing to sue) and a Petition for a Writ of Certiorari has been filed.

So, too, with Mr. Leo Donofrio.

Which brings us to the hulabaloo last week.

Countless partisans hungry for Obama's scalp were fed a diet of misinformation leading them to believe that the Suprme Court was on the edge of actually deciding whether the President-elect was a "natural born Citizen."

Nothing could have been further from the truth.

Donofrio's case was not--is not!--even in the Supreme Court of the United States.

Donofrio has not yet filed a Petition for a Writ of Certiorari.

Donofrio utilized a Supreme Court rule allowing him to ask the justice who oversees the United States Court of Appeals for the Third Circuit (Souter) for a stay of the election until he files his Petition, and then presumably until it is granted, and then presumably until the case is briefed, argued and decided. (He might better have asked Souter to declare him Pope.)

Predictably, and properly, Souter denied Donofrio's application.

He then, as the rules allow, went justice-shopping and stopped at Justice Thomas who, just as predictably and properly, referred Donofrio's application for a stay of the people's important business to the full Court.

Predictably, the full Court ruled that "[t]he application for stay addressed to Justice Thomas and referred [by him] is denied."

The election of the 44th President of the United States was not to be delayed while Mr. Leo Donofrio got his act together.

So much for the fundraising and hype, and the expectation that by today we would have a ruling by the Supreme Court of the United States that Barack Obama is ineligible to be President of the United States because he is not a "natural born citizen."

But there are still other cases out there.

What will become of them is the subject of the next, and last, installment of this series.

To be continued......................

Saturday, December 13, 2008

Questions About Obama's Citizenship: Part III

In Parts I and II of “Questions About Obama’s Citizenship” (see below) respectively, I’ve established that, and why, the President-elect’s citizenship is important, and the uncertain meaning of the constitutional requirement of “natural born citizen.”

Because of the controversy that’s been raging about Obama’s citizenship, and the lawsuits that have been brought (and failed) to shed light on it, the next question (III) is: “Who is entitled to litigate that question in a court of law?”

The answer involves the constitutional doctrine of “standing to sue,” whose textual origins are found in the Constitution’s Article III, Section 2, Clause 1: “The judicial Power [of the federal courts] shall extend to all Cases, in Law and Equity . . . .” (My emphasis.)

But, as Hamlet observed, “ay, there's the rub.”

What’s a “Case.”

We need to know, because it’s unacceptable if no one can sue about anything, and equally unacceptable if everyone can sue about everything. In order for judicial power to be exercised appropriately, someone must be able to sue about something.

But who and what?

For some two hundred years the Supreme Court has defined the concept and the term “Case” mostly by establishing what are non-“Cases.” For example, disputes raising hypothetical questions (“advisory opinions”), others where the matter has already been resolved (“mootness”), and still others where not enough has occurred between the parties to warrant judicial intervention (“unripeness”).

Sometimes there will be no “Case” because the party bringing the lawsuit lacks “standing to sue”; sometimes there will be a “Case.”

What are the Courts’ criteria?

To answer that question, we have to distinguish between non-Constitutional and Constitutional cases.

An example of a non-Constitutional “Case” is where vendors of data processing services were granted standing to sue the Comptroller of the Currency because he allowed, allegedly in violation of a federal statute, nationally chartered banks to make those same services available to other banks and their customers.

According to the Supreme Court, the vendors (1) suffered the requisite “injury in fact,” because the Comptroller’s ruling threatened their financial interests, and (2) because they possessed an interest “arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question,” because the Comptroller’s ruling was based in a statute regulating federally chartered banks—and also because there is a presumption of judicial review unless Congress expressly denies it, and regarding the subject of the Comptroller’s ruling Congress had not.

As to the question of Obama’s citizenship, “injury in fact” could have been legitimately asserted by any Democratic Party primary candidate claiming that he or she had a right to run against a candidate constitutionally eligible for the office, and the same argument could have been made by McCain and any other presidential candidate on the ballot anywhere. (More below about what theory they could have used.) The “zone of interest” requirement could arguably have been met by the recognition that the entire federal constitutional electoral structure is aimed at protecting the integrity of the process and Americans, voters, who are part of it.

A voter could have made similar arguments in support of his/her standing to sue.

If, however, a challenge to Obama’s “natural born” citizenship were to be considered a “constitutional” case, the standing to sue requirements are somewhat different. There are seven elements:

1. With specific concreteness . . . . .
2. The complaint must allege . . . . .
3. That the challenged practice . . . . .
4. Harmed them . . . . .
5. And the plaintiffs would benefit . . . . .
6. In a tangible way . . . . .
7. From judicial relief . . . . .

It is with a cold, unemotional mindset, focusing on these seven requisite elements, that a Case questioning Obama’s citizenship should have been brought.

Let’s take a look at the Twelfth Amendment to the Constitution of the United States, which was ratified June 15, 1804: “The Electors shall meet in their respective states, and vote by ballot for President and Vice President . . . and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice President . . . which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate . . . .” (My emphasis.)

Now let’s revisit the seven elements.

1. With specific concreteness . . . . This means that the complaint’s allegations must be specific, not vaguely invoking tired generalities such as “everyone’s vote is supposed to count” and that “our democracy is at risk.”

2. The complaint must allege . . . . This means that every allegation to support the constitutional theory being asserted must be included in the complaint, with no holes to be filled in later. The entire case must be presented within the four corners of the complaint. Essentially, in the case I am positing, there would have to be factual allegations, later to be proved, showing that Obama was not a “natural born citizen,” followed by the legal conclusion that under the constitutional definition of those terms he is ineligible to be President of the United States.

3. That the challenged practice . . . . In this Twelfth Amendment example, the practice would been voters casting their ballots for a constitutionally ineligible candidate.

4. Harmed them . . . . The harm to a primary or general election candidate, and to a McCain voter, is that their man or woman had to run against a non-eligible candidate.

5. And the plaintiffs would benefit . . . . The benefit would be that with the non-eligible candidate (i.e., Obama) out of the primary or general election, the plaintiffs’ candidate would have had a better chance or would actually have won.

6. In a tangible way . . . . This is the same point as in 5 above. The tangible benefit would be that with the non-eligible candidate (i.e., Obama) out of the primary or general election, the plaintiffs’ candidate would have had a better chance or would actually have won.

7. From judicial relief . . . . . This is where it gets interesting. Assuming that the six elements above could be pleaded sufficiently—especially the factual allegations to support the legal conclusion that Obama is not a “natural born citizen”—the judicial relief sought would be to enjoin the appropriate state officials from transmitting to Washington the electors’ votes.

The usual criteria for obtaining a preliminary injunction are (1) irreparable injury, (2) likelihood of eventually winning the case, and (2) a balancing of equities—i.e., who will be hurt more and who less if the injunction is granted.

Obviously, given these criteria, judges to whom applications for preliminary injunctions are presented have almost unlimited discretion in evaluating them. But in the case I posit an injunction could be granted. If voting and having one’s vote count is a fundamental right, as the Supreme Court has held more than once, violation of that right is serious enough to warrant a preliminary injunction followed by a trial of the citizenship question.

As to the three most notorious cases that have been brought challenging Obama being a “natural born citizen” (Keyes, Beck, Donofrio), they and others have apparently failed to understand the complexities of the standing to sue doctrine and the need to present facts to support their claim that they have a right to sue—facts fit into the standing to sue analysis outlined above.

Indeed, for want of this approach, and for other reasons I will explain in the next Part of this series, Donofrio’s much heralded, now denied, motion in the Supreme Court was doomed form the start.

To be continued…………………

Wednesday, December 10, 2008

Questions About Obama's Citizenship: Part II

In “Questions About Obama’s Citizenship: Part I” (see below) I wrote that there are at least five important questions surrounding his citizenship, and thus his constitutional eligibility to be President of the United States.

That Part answered Question 1: “Is the question of President-elect Obama’s citizenship important and, if so, why?”

Part II now addresses Question II: What is the meaning of the Constitution’s Article II, Section 1, Clause 5’s requirement that the President be a ‘natural [not “native] born citizen’?”

That provision mandates that “No Person except a natural born Citizen . . . shall be eligible to the Office of President . . . .” The operative words regarding Obama’s citizenship are “natural born.”

It has been said that “[t]he Framers established [this qualification, along with age and residency] in order to increase the chances of electing a person of patriotism, judgment, and civic virtue.” Indeed, the constitutional history is clear that by means of the “natural born” clause the Framers were insisting on dyed-in-the-wool loyalty to the United States of America.

The Heritage Guide to the Constitution notes also that “During the Constitutional Convention, John Jay wrote to George Washington, urging a ‘strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Commander in Chief of the American army shall not be given to nor devolve on, any but a natural born Citizen’.” In the same vein, in his Commentaries on the Constitution Supreme Court Justice Joseph wrote that the requirement of natural born citizenship “cuts off all chances for ambitious foreigners, who might otherwise be intriguing for the office.”

While there’s no serious doubt that someone born in the United States (with very narrow exceptions) is a “natural born Citizen” no matter who his parents are, and while from time to time Congress has enacted statutes which define (and even create) American citizenship, the Supreme Court of the United States has never ruled as a matter of constitutional interpretation whether one can be an Article II, Section 1, Clause 5 “natural born Citizen” if born outside of the United States to parents one of whom was not a United States citizen.

This means that if—repeat, if—the unproved allegation is true that Barack Obama was not born in Hawaii but in Kenya as some have alleged, even to an American citizen mother, his constitutional eligibility to be President is an open question.

Nothing Congress has legislated about citizenship, or could enact, changes that fact because the Constitution trumps statutes. “Natural born Citizen” is a constitutional requirement!

Thus, given the apparent original intent of Clause 5, the questions which have been raised about Obama’s place of birth, and the lack of any Supreme Court definition of “natural born Citizen,” whether the President-elect satisfies the constitutional eligibility requirement for that office is far from clear.

As such, the question does not deserve to be summarily dismissed, or attributed to right wing conspiracy theorists.

To be continued ……………………

Monday, December 8, 2008

Questions About Obama's Citizenship: Part I

Although the Internet has become one of mankind’s most efficient tools for the accumulation and dissemination of information, at the same time its contribution to ignorance is monumental and growing exponentially.

Case in point: the questions surrounding Barack Obama’s citizenship, and thus his constitutional eligibility to be President of the United States.

There are at least five important ones:

"Is the question of President-elect Obama’s citizenship important and, if so, why?"

"What is the meaning of the Constitution’s Article II, Section 1, Clause 5’s requirement that the President be a 'natural [not “native”] born Citizen'?"

"Who is entitled to litigate that question in a court of law?"

"What has the Supreme Court just done, and what has it not done?"

"What is likely to become of the question of Obama’s constitutional eligibility?"

Here is the answer to the first question, with more to come in later blogs, in the hope it and those which follow will be widely enough disseminated throughout the Internet so that the countless words of amateurish ill-informed punditry will, if not cease entirely, at least be substantially diminished.

Is the question of President-elect Obama’s citizenship important and, if so, why?

In today’s online Front Page Magazine the usually peerless and fearless David Horowitz writes –“Obama Derangement Syndrome: Shut Up About The Birth Certificate”—that “[t]he continuing efforts of a fringe group of conservatives to deny Obama his victory and to lay the basis for the claim that he is not a legitimate president is embarrassing and destructive.”

Horowitz analogizes The Obama Birth Certificate Controversy (TOBCC) to the “Bush Stole the Florida Election Controversy,” characterizing TOBCC as a “tempest,” the “fringe group of conservatives” who care about the question as “zealots,” and the question itself as a“contested technicality.”

Then he asks, rhetorically: “What difference does it make to the future of this country whether Obama was born on U.S. soil?” Horowitz would have better asked the question this way: “If Barack Obama is proved to be constitutionally ineligible to be President of the United States because of the Article II, Section I, Clause 5, requirement that he be a “natural born Citizen,” what difference does it make to the future of this country?

The fact is that it makes a great deal of difference to the future of this country whether the Commander-in-Chief and Chief Executive is constitutionally unqualified to hold office.

The most obvious reason, which should be apparent to David Horowitz, is that an ineligible Obama is a pretender to the throne, all of whose official acts would arguably be void. “Ineligible” is defined as “not legally entitled or qualified to do, be, or get something.” Hardly a job description for a Commander-in-Chief or Chief Executive of the United States of America.

But there’s an even more fundamental reason, one which rests on first principles.

As passé as it may seem in the trendy constitutional jurisprudence of today, which exalts the religion of a “living Constitution,” our founding charter expressly establishes unambiguous criteria for the presidency of the United States of America.

There’s an easy illustration. Under Article II, Section I, Clause 5—the same one which contains the “natural born Citizen” clause—the President must “have attained to the Age of thirty five Years.” According to Horowitz, raising the issue of the age requirement would be a “tempest,” “a fringe group of conservatives” arguing thirty-five actually means thirty-five would be “zealots,” and the question itself would be a “contested technicality”

This is a very slippery slope, Mr. Horowitz, and no one should realize that more than you.

If explicit constitutional requirements of any kind—e.g., “Congress shall make no law,” “No State shall,” “No person shall,” “In all criminal prosecutions” and, yes, “natural born citizen” (my emphasis) —are to be disregarded for pragmatic reasons, then there is no Constitution and thus no constitutional republic.

Horowitz does understand that an important issue is at stake here because he writes that: “Advocates of this destructive campaign [to give force to what the Constitution says] will argue that the constitutional principle regarding the qualifications for president trumps all others.” (My emphasis.)

By this statement he acknowledges there is a constitutional principle at stake here—but he doesn’t care.

Why not?

Horowitz’s non sequitur answer reveals that, at least as to the matter of Obama’s citizenship—pragmatism trumps principle. He writes: “But how viable will our Constitution be if five Supreme Court justices should decide to void 64 million ballots?” Horowitz, an otherwise staunch believer in the rule of law, is willing to exalt 64 million votes over what our founding document says.

Yet while he acknowledges that America is “divided . . . about what the Constitution itself means,” and thus about the meaning of “natural born citizen,” at the same time he denigrates as “crusaders,” “radicals” and “losers” those who believe in Originalist understanding of the Constitution, and laments about how conservatives could do such a senseless and divisive act as questioning Obama’s citizenship.

Doubtless David Horowitz would feel differently if conservatives rose up when 64 million voters decided to silence him and shut down the David Horowitz Freedom Center.

The question of Obama’s citizenship is important . . . because even more important is the Constitution of the United States of America.


To be continued …………..