June 17, 2013

Supreme Court live-blog.

Here. Possible excitement today.

UPDATE 1: An opinion in Salinas v. TexasPDF — which is about the right not to incriminate oneself ("prosecutors can comment on the silence of an accused who has not yet been arrested").

UPDATE 2: Alleyene: Justice Thomas writes the opinion holding that "Any fact that increases the mandatory minimum is an 'element' that must be submitted to the jury." Joining him are Ginsburg, Breyer, Sotomayor, and Kagan. A 5-4 decision with Thomas and the liberals. Roberts, Scalia, Kennedy, and Alito dissent. PDF.

UPDATE 3: A Kennedy opinion, but not the long-awaited Fisher (the affirmative action case). This is Maracich v. Spears, the Driver's Privacy Protection Act case. Another 5-4 decision. "An attorney's solicitation of clients is not a permissible purpose covered by the DPPA's litigation exception." PDF.

UPDATE 4: Scalia writes for the majority in Arizona v. Inter Tribal Council: "Arizona's proof of citizenship requirement is preempted by the federal law requiring that states use the federal voter registration form." Only 2 dissenters: Thomas and Alito. PDF.

UPDATE 5: And that's it for today. There will be more opinions on Thursday.

Which of the opinions are you most interested in hearing me say something about?
  
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102 comments:

rhhardin said...

I predict affirmative action will be okay so long as it's construed as a tax.

Mitchell the Bat said...

Possible excitement today.

Lucky Numbers 40, 34, 8, 52, 51, 22

Aridog said...
This comment has been removed by the author.
Dopey said...

I was on the live blog too so my curiousity had been quenched by the time I got here. No surprises today except to the ambulance chasing weasels whom (I believe)are exposed to a huge sum in statutory damages -- Maracich case.

Dopey said...

I was on the live blog too so my curiousity had been quenched by the time I got here. No surprises today except to the ambulance chasing weasels whom (I believe)are exposed to a huge sum in statutory damages -- Maracich case.

Mogget said...

It is possible that we might pay you to NOT comment on any of these. Although, a boring day in DC is a relief.

Simon said...

Alleyne is a solid win, but one must note that here we have a blockbuster case at the end of a term in which a fractured court has overturned a (somewhat) recent precedent, based on an explicitly originalist argument, and with an abrupt volte face from one justice as its fifth vote—and yet we hear no hew and cry from the media and the left. Fancy that! Could it be that the left's fetishization of stare decisis could be (hush now, do we dare say it?) cynical figleafing?

Achilles said...

What is most important? Easy one. I don't remember the constitution giving the Feds the ability to dictate to the states how to regulate voting. So the Feds get to determine who can vote and what the ID requirements are for a state? How convenient. And what a good way to make sure urban centers keep up their 105% voter participation rate.

Simon said...

Achilles said...
"What is most important? Easy one. I don't remember the constitution giving the Feds the ability to dictate to the states how to regulate voting. "

"The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations…." U.S. Const., Art. I, § 4. To be sure, whether that authority extends to the question here is arguable an arguable point—is a requirement to show ID within the ambit of the "manner" of holding elections?—but a broad-brush assertion that the Constitution supplies no federal authority to regulate elections (even if phrased as an assertion of your ignorance on the point) hardly commends you to us as someone whose judgment on Constitutional questions is to be taken seriously.

Simon said...

And, by the by, when your position loses 7-2, and Justice Scalia writes for a majority including himself and the Chief, that ought to give you pause before bowling ahead into matters of which you know little and condemning the decision, just as the fact that Justices Thomas and Alito dissented ought to give one pause before commending it.

Bob Ellison said...

Will Scalia get credit for this from leftists?

Icepick said...

So, does citizenship actually mean anything if anyone can show up at any polling place, claim to be anyone, and have their vote count?

If even the Supreme Court doesn't take the idea of citizenship seriously, the country is lost.

Bryan C said...

"So the Feds get to determine who can vote and what the ID requirements are for a state? "

I agree. This seems dodgy. But now that the federal law is the stumblingblock, perhaps the next step is to challenge the federal law.

Or, if we're pretending that drivers licenses are just like passports, perhaps states should refuse to grant drivers licenses or state IDs without proof of citizenship.

rcocean said...

The form is silent on the requirement. The ruling was that because the form DIDN'T require it, Arizona couldn't ask for it. Which is Bullshit.

The SCOTUS -like all the DC elite -loves illegal immigration and wanted to keep all the power in Washington DC, to make sure nothing is done to prevent illegals from voting.

rcocean said...

Every attempt to enforce the immigration laws by the states is found "unconstitutional". That way, the Feds can refuse to enforce it and no one can do squat about it.

It reminds me of the term limit issue. States can't pass term limits because that's a Fed matter. Which would have news to the Founding fathers.

Achilles said...

I didn't say no authority. In this case the court is nullifying a requirement that may or may not being mentioned in any statute. The congress passed something different before this and the state passed an additional requirement. That is not congress altering a regulation, that is the court defining a regulation and wiping it out completely. Why does our government seek to block photo ID at polls so vigorously?

You are constantly begging us to show deference to our government. Why? These people have demonstrated no real integrity in general. I missed your comment on the acknowledgement that the Feds have thousands of analysts listening to calls and reading emails and texts. Would I be wrong to guess your career revolves around some part of the federal bureaucracy or are a party man for the establishment?

Larry J said...

Basically, the Feds are saying, "We aren't doing our job so you can't, either!"

Bryan C said...

"To be sure, whether that authority extends to the question here is arguable an arguable point—is a requirement to show ID within the ambit of the "manner" of holding elections?"

Which, given the context, was pretty much the point of Achilles' comment, Simon.

Icepick said...

The SCOTUS -like all the DC elite -loves illegal immigration and wanted to keep all the power in Washington DC, to make sure nothing is done to prevent illegals from voting.

Well, why wouldn't they? They want a pliant peasant class, and whites just aren't pliant enough.

And note how happy Jeb Bush and Haley Barbour are that Mexicans outbreed whites, and how happy pretty much all of the elites are that whites are now in decline. They can't wait for a country that looks like Mexico or Venezuela.

David said...

The Constitution expressly gives the federal government "by law to make or alter" state provisions which regulate "[t]he times, places and manner of holding elections for Senators and Representatives."

So this was clearly within Federal power, and the only question was whether Arizona was preempted by the federal law.

Your memory failed you, Achilles.

The strange result is that while a state can require that a person be a citizen in order to vote, it can't require evidence of citizenship. Funny, but that's Federalism.

It comes as a surprise to many that citizenship is not a constitutional requirement for voting. In fact for a time in the 1800's many states expressly granted and promoted voting rights to non citizens, in an effort to attract immigrants to their states. Many of these immigrants did not speak or write English.

Icepick said...

Basically, the Feds are saying, "We aren't doing our job so you can't, either!"

Yep. And that's coming from both parties. So let us stop pretending that there's any fucking difference between the traitors with (D)s after their names and those with (R)s after their names.

David said...

Give it up on the white numerical decline in percentage of population.

That's been a trend for a long time, and it's been clear for a long time that at some point a white majority is likely to diminish and then disappear.

Whites are not a voting bloc. Except for blacks, no other group is either. The real enemy for the future is voting blocs by race or similar affinity. The Democrats don't seem to mind this, since they think it benefits them.

But consider the results if whites began to vote as a bloc? It would be powerful, but it would not be pretty. And it probably would not benefit Democrats.

Voting through race identity is the enemy, not the ebb and flow of one race or another.

Colonel Angus said...

If even the Supreme Court doesn't take the idea of citizenship seriously, the country is lost.

Going the way of Rome.

betamax3000 said...

I keep reading it as "Mariachi v. Spears."

I won't make a Movie About it.

AJ Lynch said...

Conservatives need better lawyers and should start playing the game like the Dems who take no prisoners on even the smallest issues.

Aridog said...

Okay, IANAL but can someone explain to me how challenging, with reasonable cause, an entry on the voter registration form is unconstitutional in the purview of sane judges?

The signature block states:

I have reviewed my state's instructions and I swear/affirm that:
I am a United States citizen
I meet the eligibility requirements of my state and subscribe to any oath required.
The information I have provided is true to the best of my knowledge under penalty of perjury. If I have provided false information, I may be fined, imprisoned, or (if not a U.S. citizen) deported from or refused entry to the United States.


I gather we are now on the honor system with no questions asked. I'm going to purchase a Model 1911 specifically designed and modified target pistol shortly...maybe I'll try that dodge on the criteria for my purchase. I say it is so, so it is so! Hell of a deal.

Simon said...

Bryan C said...
"Which, given the context, was pretty much the point of Achilles' comment, Simon."

No it wasn't. His point was "I'm outraged and ignorant; how dare they do this!" Nothing in his comment (or in his previous comments) suggests that, hidden in the long grass of his slashing comments is the kind of subtlety you suggest.

Achilles said...
"I didn't say no authority."

What you said was, "I don't remember the constitution giving the Feds the ability to dictate to the states how to regulate voting." Technically—technically, and in thr abstract—that is true: The federal government cannot "dictate" that the states "regulate" anything in a given way, see New York v. United States, 505 U.S. 144 (1992). But there is no such claim in this case. This is a preemption case, not a comandeering case.

Do you not remember that the author of today's opinion issued a vigorous dissenting opinion in the last big case restricting Arizona's attempts to restrict illegal immigration? Of course not. Law is not a subject into which fly-by-night amateurs should stick their noses.

Icepick said...

Voting through race identity is the enemy, not the ebb and flow of one race or another.

And how many other races/peoples of non-whites have historically been in favor of smaller, limited governments, constrained by rule of law and citizens behaving as citizens? Let's see, there's the Congo ... no, that's not right. There's Syria and all those other free Arab states ... no, that's not right either. China? Uh-uh. Mexico has a long history of a small government yielding to the interests of its citizens ... no, that STILL isn't right.

I'd feel a lot better about that whole "voting by race is the enemy" thing if whites weren't the only people expected to act that way, and were in fact expected to vote against their own interests in favor of everyone else at every turn. I don't at all see why it is in my best interests to elect a Cuban to import 35 or 40 million more Mexicans into the country so he can run for President by bad-mouthing everyone that isn't a fertile person of color. But maybe that's just me....

edutcher said...

Went with 4, but my real question is Scalia said OK?

Are we sure the Choom Gang isn't using some of that PRISM info to get the decisions (and votes) it wants?

Simon said...
This comment has been removed by the author.
Simon said...

Aridog said...
"Okay, IANAL but can someone explain to me how challenging, with reasonable cause, an entry on the voter registration form is unconstitutional in the purview of sane judges?"

Sure. Congress has exercised its unquestioned authority to supersede state election regulations in various statutory provisions. One of those provisions requires that all fifty states “accept and use” a uniform federal form to registering potential voters for federal elections. That requirement may be wise or not, but that is what a valid federal law requires. If a state rejects applicants who send in the federal form unless the applicant appends some other thing specified by state law, it does not accept and use the federal form: Federal law requires that states accept the federal form as sufficient, and a state law that makes it only necessary is preempted by the federal requirement. That is precisely what has happened here. Arizona law makes insufficient that which federal law demands be sufficient, and the state law is therefore preempted.

Achilles said...

The original intent of the founders was to protect the minority from the tyranny of the majority. The last century has been about our federal government slowly eroding citizen protection afforded by the constitution and forcing everyone to obey they will of "the majority" even if it is bused in and doesn't have any ID.

Icepick said...

Conservatives need better lawyers and should start playing the game like the Dems who take no prisoners on even the smallest issues.

Please. Look at how those wonderful conservatives Marco Rubio, Antonin Scalia, John Roberts, Jeb Bush, George Bush and all the others are behaving. The whole conservative movement looks like nothing more than a giant tar baby meant to ensnare those who don't want to see the Republic flushed down the toilet. And there's no brier-patch to be throw into for escape, either.

Icepick said...

I'd feel a lot better about that whole "voting by race is the enemy" thing if whites weren't the only people expected to act that way, and were in fact expected to vote against their own interests in favor of everyone else at every turn.

Although to be fair, blacks consistently vote against their own interests these days. Importing more Mexicans to suppress wages and force them out of their own neighborhoods (a la Compton) isn't in their interests either, but Blacks with vote for the person with the (D) after their name no matter what.

Aridog said...

Simon...I said in the "purview of sane judges" and this finding doesn't meet the giggle test. The ACA finding vis a vis tax versus penalty didn't either, so I am not surprised. The court is now afraid what Obama said in 2011 SOTU address might be true...to they become toads.

To hold that one form is to be used may be fine, but to assert the form is sufficient on its own, and to hold that a legal assertion of citizenship cannot be challenged when the form itself cites perjury as a potential crime for signing if all is not true...that is insane.

We are becoming a nation governed by rubber stamp bullshitting toads.

Birkel said...

The next question is whether an individual has standing to sue under the theory of "vote dilution" as a matter of Equal Protection under the law.

Without reading the case, which I don't want to do, frankly, can someone tell me if such a theory was advanced and rejected by the SCOTUS?

Simon said...

cepick said...
"Look at how those wonderful conservatives … Antonin Scalia[ and] John Roberts … are behaving."

I am very happy with how the Chief and Justice Scalia are behaving, notwithstanding that they occasionally reach conclusions at odds with my own. They are behaving as conservative judges, which is precisely what we used to say we wanted. It is ignoble indeed that some pretend conservatives now seem upset—indeed, beset with buyers' remorse—that after enormous effort to tame the liberal majority we have at long last succeeded and now have four solidly conservative judges—albeit two different kinds of conservative—on the Supreme Court.

Achilles said...
"The original intent of the founders"

The original intent of the founders has very little to do with anything, as legal conservatives have been arguing since the 1980s. Robert Bork explicitly rejected intent as the criterion. Antonin Scalia explicitly rejected intent as the criterion. I'm pretty sure that Clarence Thomas has, too. Frank Easterbrook has gone even further, and has demonstrated why intent cannot be the criterion. Perhaps none of this means anything to today's tourists and faux conservatives, but it used to mean something to the conservative legal movement.

David said...

The Constitution does not require citizenship in the United States to vote in elections.

Never has. This is not something the courts made up.

Deal with it.

Icepick said...

I think next election I'll just show up at multiple polling places claiming to be multiple different people, and vote. What the fuck? Sure it's illegal, but the government cannot, as a matter of constitutional DEMAND, actually do anything to find out if I am who I say I am.

So, whose names to use? I think I'll try Afrika Bambaataa, Barack Obama, and of course, Courvoisier Winetavius Richardson. To bad Eductcher wasn't on this thread, or he could maybe give me some other names.

Achilles said...

What you said was, "I don't remember the constitution giving the Feds the ability to dictate to the states how to regulate voting." Technically—technically, and in thr abstract—that is true: The federal government cannot "dictate" that the states "regulate" anything in a given way, see New York v. United States, 505 U.S. 144 (1992). But there is no such claim in this case. This is a preemption case, not a comandeering case.

Do you not remember that the author of today's opinion issued a vigorous dissenting opinion in the last big case restricting Arizona's attempts to restrict illegal immigration? Of course not. Law is not a subject into which fly-by-night amateurs should stick their noses.

6/17/13, 11:55 AM

So the Feds can tell the states the states can't require proof of citizenship because... Simon said! And those amateurs should keep their noses out of it! Valid federal law! Unquestioned authority! Neener neener! You are ignorant and uneducated!

The court is rewriting law. The Feds are assuming powers they were never meant to have. They are governing against the will of the people in these states. Funny how the Feds came up with the legal definition of preemption. And the Supreme Court interpreted their powers to rewrite laws. They found Obamacare constitutional somehow. These people are not infallible.

The federal government has been slowly accruing powers it was never meant to have through interpretations like preemption. The commerce clause has been FUBAR. And now we have Simon telling the little people we should let the court rewrite a state law because of another power the court and the Feds made up for themselves.

I may be ignorant. But I am not stupid like you. If we keep allowing the federal government interpret the constitution in ways that give them unlimited power we will lose what this country was meant to be and what made it great in the first place.

Simon said...

Aridog said...
"I said in the 'purview of sane judges' and this finding doesn't meet the giggle test."
We are becoming a nation governed by rubber stamp bullshitting toads.

Nonsense. You don't like the ruling, so you're constructing excuses for why it cannot possibly be right. The ruling is not only sane and giggle-free, it is entirely correct. If you want to rip preemption out of constitutional law, by all means go ahead, but you are going to have to rip a very, very long way back in order to excise from the law the conclusion that a valid federal law doesn't preempt a directly contrary state requirement.

"The ACA finding vis a vis tax versus penalty didn't either, so I am not surprised. "

It may or may not have been correct—I was inclined to side with the dissent—but it was certainly an arguable and conservative position.

Icepick said...

The Constitution does not require citizenship in the United States to vote in elections.

Never has. This is not something the courts made up.

Deal with it.


The Constitution doesn't explicitely state that can't be used as a criterion, does it? And if it does, it should be changed.

More to the point, the Constitution doesn't say I can't show up and pretend to be someone else and vote in their name. Or that someone else can't do that to me. But it would seem to be a reasonable requirement in most systems that utilize voting in some manner or another, yes?

(Don't bother answering. I'm sure you are quite happy if some Mexican shows up and votes under my name. I'm also sure you'd raise holy Hell about someone doing that you you and voting straight Libertarian, or some such. Like everything else these days, it's merely a question of "Who? Whom?")

Birkel said...

So no comment about an Equal Protection and "vote dilution" theory from anybody?

Bueller?

Simon said...

Achilles said...
"So the Feds can tell the states the states can't require proof of citizenship because... Simon said! And those amateurs should keep their noses out of it! Valid federal law! Unquestioned authority! Neener neener! You are ignorant and uneducated!"

No, the Feds can tell the states that they can't do so because the Constitution gives them that authority. It may be a stupid use of that authority, but that's what Congress decided to do. And having demonstrated earlier that you were completely ignorant of the Constitutional footing of this question—and incidentally that you hadn't even read the case—you might want to soft-pedal that part of your defense. You don't seem to have any concept of how law works and what courts do. The court isn't there to stop Congress from making concededly-valid but stupid laws, or to protect the electorate from their own idiocy. They are there to decide cases arising under the laws and constitution of the United States, not to provide grown-up supervision to a jejune Congress.

Achilles said...

David said...
The Constitution does not require citizenship in the United States to vote in elections.

Never has. This is not something the courts made up.

Deal with it.

6/17/13, 12:20 PM

This is not a good argument in this situation.

It may not be something specifically delineated in the constitution, but it is definitely the will of the people to require it.

The government invalidated a legislative action of the people. In order to do that it should need to find a constitutional power or article to support its action Not a constitutional argument for requiring citizenship.

Simon said...

Birkel said...
"The next question is whether an individual has standing to sue under the theory of "vote dilution" as a matter of Equal Protection under the law."

You mean directly, as distinct from under the VRA? I can't see why it would be difficult to find someone with standing, even if the legal claim itself is no good, but why would you bring that case under Am15 rather than section two?

Simon said...

Achilles said...
"The government invalidated a legislative action of the people. In order to do that it should need to find a constitutional power or article to support its action Not a constitutional argument for requiring citizenship."

And indeed it did, so what exactly are you complaining about? Is there anything here except "I don't like the fact that this law is preempted"?

Achilles said...


Simon said...
Aridog said...
"I said in the 'purview of sane judges' and this finding doesn't meet the giggle test."
We are becoming a nation governed by rubber stamp bullshitting toads.

Nonsense. You don't like the ruling, so you're constructing excuses for why it cannot possibly be right. The ruling is not only sane and giggle-free, it is entirely correct. If you want to rip preemption out of constitutional law, by all means go ahead, but you are going to have to rip a very, very long way back in order to excise from the law the conclusion that a valid federal law doesn't preempt a directly contrary state requirement."

Exactly. The constitution is not a long document and like the bible is being applied to topics not specifically delineated. The key word is interpretation. Somehow over two centuries the federal government has come up with interpretations that give it more and more power.

I am not ignorant of this history. I think it is bullshit. This is a distinction that you would have to be a bit more intelligent to understand. You bleat out your reverence of the government like a good little sheep though.

Emil Blatz said...

For kids playing at home, I think it is especially instructive to scroll down to the Cert. Denied pages (and pages, and pages...) I think that a lot of folks assume the Supreme court takes a lot of appeals. Not.

Also of note - Liberace suspended!

Carl Liberace.

Simon said...

Achilles said...
"Exactly. The constitution is not a long document and like the bible is being applied to topics not specifically delineated. The key word is interpretation."

Like the Bible—the comparison is not exact, but it's serviceable—the Constitution is a text that is, can only be, and must be read within a tradition. Attempts to wrench it from that tradition and ignore either one or both have certainly been made, but neither liberal protestantism nor fundamental protestantism avoid the basic and essential error (heresy in the religious sphere, mere foolish liberalism in the civil) that demands that we wrench the text out of the tradition in which it must be read. And that error is not persuasive in either context; the history of protestantism and non-conservative judging stand as veritable galleries of the defects of that intellectual approach.

Aridog said...

Simon...okay, tell me why the prescribed form contains the statement about perjury, adjacent to the signature block, if all statements on said form are to be taken as "sufficient?" Who precisely may challenge any entry to determine veracity or perjury?

ricpic said...

Hey, according to SCOTUS you're a citizen if you fill out a federal form "Hell yeah, I'm a citizen!" Is that the equivalent of the Republicans agreeing to the *presto* you're legal bill in order to prove they're not evil meanies? Yes, yes it is. The Ruling Class wants to be your buddy. After all, it's a therapeutic culture, what's being right compared to being loved?

Chip Ahoy said...

Wait! I want my vote back. Voted for the Arizona thing but then realized I already know the reasoning behind that AND IT SUCKS and that is the reason why the court system does not check the federal government, nor the legislative check the executive, and the same is true at all levels of government now and it means that laws as written don't mean shit, that's colloquial for "meaningless," when government force is successfully parlayed to the advantage of Party *spit* and that is why trust sinks to worse than zero.

So please do not talk about that. I just voted because I thought it most important. I'll only become more depressed.

Simon said...

Aridog said...
Simon...okay, tell me why the prescribed form contains the statement about perjury, adjacent to the signature block, if all statements on said form are to be taken as "sufficient?" Who precisely may challenge any entry to determine veracity or perjury?

That's not what I mean by "sufficient." The NVRA requires states to "accept and use" the federal form. Another way to say this—and I apologize if I have wrought confusion in trying to bring clarity—is that the NVRA declares that the federal form is "sufficient"—and Arizona law says that the federal for is not "sufficient." Arizona law says that the federal form is necessary, but, if it is to be sufficient, it must be accompanied by something else. Cf. slip op. at 7.

Rabel said...

The decison is not nearly as absolute as people are thinking.

The court acknowledged that while the federal government may regulate elections, the states retain the authority to determine who may vote limted only by non-discrimination requirements of several amendments.

They worked around the conflict between this acknowledgement and the desision by noting that the federal law in question provided a means for the states to appeal to the feds and the judiciary to include their voter registration requirements in the "accept and use" form and that Arizona has not so far attempted to use that means.

"Happily,we are spared that necessity, since the statute provides another means by which Arizona may obtain information needed for enforcement."

The can was kicked. It's bouncing down the road.

Chip Ahoy said...

Hello Simon. It did give me pause. You make very good points. And I do see the legal reasoning. But as a citizen I am still betrayed. And the Court has failed to check the Federal government in its malicious selective application of law that benefits Party above country, as it was designed to protect. And the whole thing takes on the appearance of criminal syndicate and not protecting legal rights of citizens at all.

Icepick said...

Voting through race identity is the enemy, not the ebb and flow of one race or another.

The ebb and flow of one race or another. Hmm, what does that remind me off? Oh yes, that would be white people moving into what became the United States of America. How well did that bit of unfettered immigration, that complete lack of border control, work out for the original inhabitants of this land?

How well did allowing white Americans unfettered access to move into Texas and later California work out for Mexico? Hell, not only did we steal half of their country, we stole the half with all the paved roads!*

I could mention other examples but what's the point? Allowing masses of people (or peoples) into a nation and not having those people accommodate themselves to the native culture is a sure path to ruin for the original natives.

* Joke courtesy of P. J. O'Rourke.

Simon said...

Chip Ahoy said...
"And the Court has failed to check the Federal government in its malicious selective application of law that benefits Party above country, as it was designed to protect."

That isn't its job. The court can't say "the scope of federal preemption in area A depends on the good faith of one administration in executing federal law in area B"; law doesn't work that way. When the real issue is not that the government is violating the law but that what it's doing is stupid, the remedy to that problem is not litigation but the ballot box: It's to elect a better government. And while the President is obliged to take care that the laws are enforced, that approaches the essence of a political question (cf. Nixon v. United States, 506 U.S. 224 (1993)), and even if it didn't, it is hard to imagine a less attractive litigation posture than to fault the President for taking care that this law be executed simply because he is not taking care that some other law be executed.

Rabel said...

I feel that a response is needed to Simon's assertion:

"Law is not a subject into which fly-by-night amateurs should stick their noses."

My response is:

"Fuck off, you elitist prick."

Icepick said...

The court acknowledged that while the federal government may regulate elections, the states retain the authority to determine who may vote limted only by non-discrimination requirements of several amendments.

By which non-discrimination requirements it is meant: you can only challenge the rights of white people to vote. Because everything else is discriminatory.

Aridog said...

Simon ... I understand what you meant, but do you understand what I meant? This is non-sense, if "sufficient" in the federal sense how is it controversial to ask for proof? A border state with a well known illegal problem, exigent to say the least, can't require additional documentation to make a form whole? Se we debate a word or two words?

Let's say the applicant barely speaks English and has no proof of residence other than a utility bill in his purported name. He fills out the form and it is "sufficient." There is no cause for a challenge, and none available because of this ruling.

The decision sounds like more semantic bullshit. Sad, but not surprising these days.

Signed by citizen: Jose Francis Hansdotter Umbulajab.

Icepick said...

Chip Ahoy wrote: So please do not talk about that. I just voted because I thought it most important. I'll only become more depressed.

Why should you be let off the depression hook?

Rabel wrote: My response is:

"Fuck off, you elitist prick."


Fuckin' A!

Achilles said...

Simon said...
Achilles said...
"Exactly. The constitution is not a long document and like the bible is being applied to topics not specifically delineated. The key word is interpretation."

Like the Bible—the comparison is not exact, but it's serviceable—the Constitution is a text that is, can only be, and must be read within a tradition. Attempts to wrench it from that tradition and ignore either one or both have certainly been made, but neither liberal protestantism nor fundamental protestantism avoid the basic and essential error (heresy in the religious sphere, mere foolish liberalism in the civil) that demands that we wrench the text out of the tradition in which it must be read. And that error is not persuasive in either context; the history of protestantism and non-conservative judging stand as veritable galleries of the defects of that intellectual approach.

6/17/13, 12:47 PM

And we have a federal government that has gone from being 3% of GDP to 25% of GDP in the last 2 centuries. This tradition you speak of is the federal government getting traditionally larger and more invasive. Now they want to define who the electorate is. Sure they have the power to tell the people the laws they came up with are unconstitutional or preempted. They gave themselves that power! Brilliant!

The tradition is bullshit. Your arguments for supplicance to the federal government has many steps and you can make eloquent arguments for it. But all of those arguments are based on interpretations by courts in the federal government. The basis of this tradition or the first legal interpretation, which could also be described as a usurpation, was the court interpreting itself the a ability to invalidate and rewrite any law.

It was not meant to be this way. The power was supposed to reside with us ignorant people. The government just keep interpreting itself more power slowly bit by bit.

Icepick said...

Achilles wrote: The tradition is bullshit. Your arguments for supplicance to the federal government has many steps and you can make eloquent arguments for it. But all of those arguments are based on interpretations by courts in the federal government. The basis of this tradition or the first legal interpretation, which could also be described as a usurpation, was the court interpreting itself the a ability to invalidate and rewrite any law.

It was not meant to be this way. The power was supposed to reside with us ignorant people. The government just keep interpreting itself more power slowly bit by bit.


Which is why I tell people that if they're interested in a smaller, constrained government, a government that is accountable to its citizens and not one that has treats its people as mere subjects, they need to stop looking to the Constitution of the United States and start looking towards the Declaration of Independence as their guiding beacon.

Icepick said...

Is there a Constitutional Convention Party registered anywhere? That's probably the next step.

Achilles said...

"Which is why I tell people that if they're interested in a smaller, constrained government, a government that is accountable to its citizens and not one that has treats its people as mere subjects, they need to stop looking to the Constitution of the United States and start looking towards the Declaration of Independence as their guiding beacon."

You can't say stuff like that. It is racist! And you don't believe in roads and stuff. Just remember you didn't build that!

Simon said...

Icepick said...
"Is there a Constitutional Convention Party registered anywhere? That's probably the next step."

That is the worst idea conceivable—it would be the end of the American constitution, and quite probably the end of the United States. Anyone who thinks that we have the political talent and temper to have a constitutional convention is out of their mind. It's insanity.

edutcher said...

Icepick said...

Conservatives need better lawyers and should start playing the game like the Dems who take no prisoners on even the smallest issues.

Please. Look at how those wonderful conservatives Marco Rubio, Antonin Scalia, John Roberts, Jeb Bush, George Bush and all the others are behaving. The whole conservative movement looks like nothing more than a giant tar baby meant to ensnare those who don't want to see the Republic flushed down the toilet.


If you think they're Conservatives, you would have loved voting for the dough-faces 160 years ago.

Simon said...

Aridog said...
"how is it controversial to ask for proof? A border state with a well known illegal problem, exigent to say the least, can't require additional documentation to make a form whole?"

Your first sentence answers your second. Arizona is adding a requirement to a form that federal law says is sufficient. We therefore have two laws that are in conflict: One says that the form is sufficient, one says that it isn't. Preemption doctrine, which gives effect to the supremacy clause, demands that the state's law give way, and that is so even if one happens to believe (which I do not dispute) that the state law is better, smarter law than the federal law


Rabel said...
"I feel that a response is needed to Simon's assertion [that] 'Law is not a subject into which fly-by-night amateurs should stick their noses.' My response is: 'Fuck off, you elitist prick.'"

You know, my electrician once said, "if you stick your fingers in there, you're going to get a nasty shock." I replied "fuck off, you elitist pri--BZZZZZZZZZZZZZZZZZZZZZZZZZZZZZ."

There's nothing elitist about demanding some relevant knowledge on the part of those who wish to enter a debate. You think that law is some secret magic to which only the divines and graduates of Hogwarts have access? Of course not. Anyone with half a brain can learn it. My point is that people who haven't spent some time learning it have nothing valuable to contribute because they literally don't know what they're talking about. That's why, in recent discussions on the NSA programs, people who have no comprehension how incredibly intricate is fourth amendment doctrine feel that they are qualified to answer the question simply by regurgitating the text of the amendment, as if we've all forgotten about that, as though they had discovered it anew.

I'm not demanding a JD. I'm demanding that you be informed.

Achilles said...
"The tradition is bullshit."

The first and fundamental claim of liberalism, its point of departure from conservatism, is the assertion of a right to make that judgment. I'm a conservative, so I don't make such a claim.

Simon said...

Excuse me, I meant the second sentence answers the first.

Crunchy Frog said...

The upshot of this ruling is to say, if the federal government says you have to use the form, you have to use the form. No requiring ID to register.

It says nothing about requiring ID to vote. States can check ID at the polling place all they want, and there is no federal law saying they can't.

Aridog said...

Simon...I must be missing something about the interpretation of the word "sufficient". The form is sufficient for registration,...e.g., the presentation of information, but can it be challenged or not? If not, why the statement vis a vis truth and perjury?

Rabel said...

Simon said:

"I'm not demanding a JD. I'm demanding that you be informed."

An excellent point. Much better phrased that the earlier one.

And to illustrate that, I'd refer you to today's decision. Had you read it, particularly its references to Article 1, Section 2, you could have avoided the ill-informed, fly-by-night and amateurish opinions you have offered up today, most of which are either off-point or blatantly incorrect.

Icepick said...

You can't say stuff like that. It is racist! And you don't believe in roads and stuff. Just remember you didn't build that!

No, my Dad did. He worked coal mines (strip mining) during WWII. (A birth defect kept him out of the war, which he considered the great tragedy of his life, though I don't think any of us realized this until after he had died.) During the fifties he helped build the roadways for various new places called suburbs. IN the early 1960s he helped build what is now known as the Kennedy Space Center. In the late 1960s and early 1970s he helped build what's now known as Walt Disney World. And starting in the late 1950s he helped build various interstates at different intervals. All this amongst many other things he helped actually, you know, BUILD. Obama's "You didn't build that!" was the most offensive thing I've ever heard a politician say in my lifetime.

Icepick said...

That is the worst idea conceivable—it would be the end of the American constitution, and quite probably the end of the United States. Anyone who thinks that we have the political talent and temper to have a constitutional convention is out of their mind. It's insanity.

Anyone that thinks the current leadership of the country is going to give up their power is out of their mind. Anyone that thinks these clowns are intent on anything other than looting the country while they destroy it is out of their minds. Nothing but a complete sweep of the ruling class has any hope of reversing the rot that has seen this country go from a Republic governed by Citizens sharing in a dangerous enterprise to a kleptocracy which has reduced Citizens to Subjects to be dealt with as the government chooses.

Matt said...

Well Scalia got Arizona v. Inter Tribal Council right. And, no, it's not because he 'loves illegal immigrants' as some knucklehead commented earlier.

Icepick said...

If you think they're Conservatives, you would have loved voting for the dough-faces 160 years ago.

LOL, of COURSE they're conservatives! They TELL me so! So does the media. I mean, the media that keeps telling me the National SOCIALIST Party was a bunch of righties just like George Washington and Ronald Reagan must be trustworthy!

edutcher said...

And Choom said if you liked your plan, you could keep it.

People say stuff all the time.

Icepick said...

The government today is beyond parody. The Republicans, the supposed party of nativist whites, has had several of its leaders come out and say that they're done with white people and only want the support of Mexicans that don't yet have the vote - and can be guaranteed to vote overwhelmingly Democratic once they do get the vote. (Well, that's complicated by today's ruling from the Supreme Court.)

Obama is traveling to the country of Ireland: and it is determined that it is so dangerous THERE that they need to divert two carrier groups to protect him, not to mention that extra-territoriality granted to the Secret Service. Meanwhile Ambassadors in shitholes like Libya are not supposed to have any protection.

The Federal government is using the Foreign Intelligence Surveillance Court to subpoena records on Americans interactions with other Americans IN America. Meanwhile the FBI stopped investigating domestic mosques a couple of years back because, you know, discrimination.

The IRS is now an instrument of state suppression of political dissidents.

People whose only qualification for high office is that they will tell the most bald-faced lies to the public over and over again are now the closest most trusted advisers to our President.

Our President has bragged about assassinating other Americans - and about having won the Nobel Peace Prize.

We have a President celebrated as the greatest genius the nation has ever seen who can't pronounce the word "corpsman" properly.

We have a President who can't get more than three unscripted words out without saying "uuuhhhh ... uuummmm" celebrated as the most brilliant speaker the nation has ever produced. (And sometimes he has problems avoiding such verbal dreck when he DOES have a script.)

We have Congressional leadership that maintains that actually READING the legislation before them is a burden too heavy.

We have any number of government officials who have become extremely wealthy through ... no one is sure what, because it sure as Hell hasn't come from their salaries.

We have a news media that can't break any scandal about the government because they're literally in bed with the government. We have a news media that will lie about the state of the country solely for partisan gain of their favored party. (Example: How many media outlets last year talked about how well the economy had recovered under Obama? How many of those outlets pointed out that we were still, at that time, over three million jobs SHORT of where we had been when the economy fell into recession in December of 2007, and at least four million FULL TIME jobs short of where we had been? In other words, how many of them pointed out that we were still then and still now in a deep EMPLOYMENT and WAGE recession, with no end in sight?)

We have an electorate that hates Congress, Congress has about a 10% approval rating - and that electorate can be guaranteed to re-elect 90% of them come next year because they have no idea how to even go about changing ANYTHING.

We have a government that is completely beyond parody, completely incompetent, and increasingly imperial - and no way to get rid of it. In part this is because the system has been increasingly rigged over time to favor a particular SET of parties. And we're now stuck with those parties no matter what we do. Or rather, no matter what we do IN THIS SYSTEM.

The only way out is to ditch the whole damned system. Thus the NEED for a Constitutional Convention. I propose that the first article in a new Constitution be dedicated to definitions of basic concepts like Citizen, how Citizenship is earned or granted, what contitutes an election, what requirements are DEMANDED of those attempting to vote, and so forth.

Palladian said...

"Law is not a subject into which fly-by-night amateurs should stick their noses."

LOL. Says someone who didn't go to law school and isn't a lawyer.

Icepick said...

People say stuff all the time.

Stuff? You going soft?

Icepick said...
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Palladian said...

Palladian, someone told me bad things are going on with you. What the Hell, dude?

Yup. Very bad things. But this is not the place nor time.

Icepick said...
This comment has been removed by the author.
Achilles said...

The end of the United States will not come with a bang. It will end when most of the people do not believe the government has sufficient moral authority to govern. People will just stop complying. Our tax system requires a very high voluntary compliance rate. If even 10% of tax payers decide to stop complying and the government is forced to jail and fine them it will all fall apart.

The reason this will happen is because of people like Simon who try to subvert the meaning of government. The government is supposed to serve us. People like Simon are ok with it lording over us and dictating every aspect of our lives for our own good of course. He just wants different people in charge. As the government assumes more power we should just acquiesce because people in government graduated from Harvard and Yale and they are smart.

The government no longer has the moral authority to dictate to us. It has grabbed too much power. Our country is going to become Europe. Our founders created a limited government. This is not what is trying to lord over us now. Europe is failing in large part because 20-50% of their economies have fled underground away from excessive government overreach. We are going the same way.

Icepick said...

Palladian, I will delete comments as needed.

Palladian said...

Palladian, I will delete comments as needed.

Nah, don't worry about it. If there's a café post later today, stop by and we'll chat.

Icepick said...

Our tax system requires a very high voluntary compliance rate. If even 10% of tax payers decide to stop complying and the government is forced to jail and fine them it will all fall apart.

It depends on which ten percent. I know people that have already gone "underground", but they don't make enough for it to matter on the INCOME tax side - they'd likely be paying nothing or next to nothing anyway. Of course, that still leaves that FICA tax ....

Icepick said...

Okay, but I'll delete them anyway. It takes whole seconds. And if you delete your response we can maybe mystify people a little. With what I've been writing lately maybe they'll think there's a conspiracy brewing.

Uh, wait a minute, that might now be such a good idea....

Oh, who are we kidding. The government's already got all the posts archived anyway. And a quick check on me would reveal I'm not even worth harassing.

Rabel said...

Scalia has, in fact, drawn a map which, if Arizona follows it and receives an adverse administrative decision, will lead it back to the Supreme Court but with a stronger case.

"Arizona may, however, request anew that the EAC include such a requirement among the Federal Form’s state-specific instructions, and may seek judicial review of the EAC’s decision under the Administrative Procedure Act."

Sneaky bastard. I love him like a brother.

Icepick said...

Rabel wrote: Sneaky bastard. I love him like a brother.

I don't see how that map helps. The EAC is certainly NOT going to include such a provision under the Obama Administration, and it is very unlikely that any other Administration will do so after the 2016 election.

Which puts it all onto the courts which have already determined that (a) the federal guidelines take precedence, and (b) the federal guidelines state that proof of citizenship is verboten. How likely would the courts reverse themselves in this instance? Even if Scalia and Roberts switch sides, it's still a loser at the Supreme Court level.

Rabel said...

Icepick asked:

"How likely would the courts reverse themselves in this instance?"

50-50. If it returns to the SC after Arizona meets the requirement to apply for state specific instructions, then the liberals will run head-on into Article1, Section 2 which has been interpreted as giving the states exclusive control over exactly who in their state is a qualified voter (within the limits of the non-discrimination amendments).

Simon said...

Icepick, you may be ready to throw in your lot with revolutionaries, but whatever the difficulties of the present situation, one does not cure a cold with a shotgun blast to the face.

Aridog said...
"The form is sufficient for registration,...e.g., the presentation of information, but can it be challenged or not? If not, why the statement vis a vis truth and perjury?"

I don't know whether it can be challenged in that sense in no circumstance—by who and in what forum—although today's decision seems to imply not.


Crunchy Frog said...
"The upshot of this ruling is to say, if the federal government says you have to use the form, you have to use the form. No requiring ID to register."

For federal elections. States can do whatever they like for state elections, unless they run afoul of some other provision.


Rabel said...
"And to illustrate that, I'd refer you to today's decision. Had you read it, … you could have avoided the ill-informed, fly-by-night and amateurish opinions you have offered up today, most of which are either off-point or blatantly incorrect."

LOL. Good one.

Achilles said...
"The reason this will happen is because of people like Simon who try to subvert the meaning of government. The government is supposed to serve us. People like Simon are ok with it lording over us and dictating every aspect of our lives for our own good of course. He just wants different people in charge."

That is not even close to my position. As I have repeatedly said, although you seem determined to ignore it, the better to create a strawman at which to thrust—I don't want to change the people in charge, I want to return government to its traditional ambit. Not overnight, for revolution is always bad. But I want to set us on a path that will undo most of what the new deal and progressive eras did to expand the reach of government. There is something splendidly silly in your insistence that I am more-or-less Justice Breyer—a technocratic big-government progressive—simply because you're too fucking stupid to realize that there are people in the world who are neither libertarians nor progressives. You're like the barkeep in the Blues Brothers—or perhaps Henry Ford is the better analog: One might have any opinion one likes so long as it's a descendant of liberalism.

edutcher said...

Icepick said...

People say stuff all the time.

Stuff? You going soft?


Gets the point across just as well and one of the places where the deterioration of the culture began was the so-called Free Speech Movement out in Berzerkly about 50 years ago and I try real hard not to fall into their trap.

Simon said...

edutcher said...
"Berzerkly"

Love it. :D

30yearProf said...

S. Ct. says that you have no effective right until and unless you EXPRESSLY invoke it.
Whether in custody or not, you MUST say the magic words: ? ? ? .
HELL, at this point I don't know what they are anymore. Whatever you say can be JUDGED
to be inadequate to give the poorly trained, ignorant, distracted OFFICER sufficient notice.

The Supreme Court is turning the World over in order to favor the police. They must really be
scared of free citizens. Best interim advice is to hand them your DL and say NOTHING AT ALL other than I want a lawyer.

Icepick said...

Icepick, you may be ready to throw in your lot with revolutionaries, but whatever the difficulties of the present situation, one does not cure a cold with a shotgun blast to the face.

And you don't cure gangrene by handing someone a box of tissues and telling them to drink a lot of orange juice.

rcommal said...

Salinas v. Texas, please, Althouse--if you really mean that just one can be chosen, which I wish not.

Simon said...

30yearProf, invocation has been the law for decades, has it not?

Simon said...

Icepick said...
"And you don't cure gangrene by handing someone a box of tissues and telling them to drink a lot of orange juice."

Well, then we'd better hope that we're not yet at that point. Like Scalia, I might say: "Bork has essentially given up. I'm not ready to throw in the towel."

rcommal said...
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rcommal said...
This comment has been removed by the author.