Category Archives: Law

Origination-Clause Argument Against Zero-Care

If—or rather when—a new constitutional challenge to Obamacare fails, this won’t be because Sissel v. United States Department of Health & Human Services lacks merit, but because we are governed by a tripartite tyranny of colluding quislings and their armies of extra-constitutional commissions and agencies, in whose legislation The People have no say.

Indeed, on May 8, 2014, an interesting and rather original oral argument is scheduled to be heard by the D.C. Circuit Court of Appeals, in the case launched against United States Department of Health & Human Services. The Plaintiff is the Pacific Legal Foundation. Here is a Summary of the PLF’s case:

Pacific Legal Foundation has launched a new constitutional cause of action against the federal Affordable Care Act. The ACA imposes a charge on Americans who fail to buy health insurance — a charge that the U.S. Supreme Court recently characterized as a federal tax. PLF’s amended complaint alleges that this purported tax is illegal because it was introduced in the Senate rather than the House, as required by the Constitution’s Origination Clause for new revenue-raising bills (Article I, Section 7).

The Origination Clause argument is part of an amended complaint filed in PLF’s existing lawsuit against the ACA, Sissel v. U.S. Department of Health & Human Services, pending before Judge Beryl A. Howell, in the U.S. District Court for the District of Columbia.

PLF’s Sissel lawsuit was on hold while the U.S. Supreme Court considered the challenge to the ACA from the National Federation of Independent Business (NFIB) and 26 states, in NFIB v. Sebelius. As initially filed, PLF’s Sissel lawsuit targeted the ACA’s individual mandate to buy health insurance as a violation of the Constitution’s Commerce Clause (Article I, Section 8).

MORE.

UPDATE II: The Elephant In the Courtroom

Crime, Justice, Law, Racism, South-Africa

Finally, media other than yours truly mentions, if fleetingly, the elephant in the Pistorius courtroom: unidirectional, black-on-black and black-on-white violent crime. Examined in depth and at length in Into the Cannibal’s Pot, crime, and the fear of being butchered, was likely behind the blade runner’s irrational, irresponsible actions.

“[F]or all his privilege, Oscar Pistorius knows the rapacity and invincibility of the criminal class in his country. Like every other Afrikaner, he knew in his gut what infiltrating gangs would do to a legless Boer. He had seen images of the mangled bodies.” (From “Blade Runner Killing And The Media Blackout.”)

The Economist doesn’t go so far as to acknowledge the legitimacy of the fear, but does mention it:

When Mr Pistorius declared in his testimony, “I shot out of fear,” he became the voice of many white South Africans. They tend to see themselves as living in the shadow of violent crime, retreating behind high walls, electric fences and steel doors. From there they can summon private security guards, who are twice as numerous as policemen, by pressing a panic button.

The trial has revived a long-running debate about other aspects of crime. South Africa’s murder rate is one of the highest in the world: 30.9 for every 100,000 people, compared with 4.7 in the United States. Yet the rate has fallen by half in the past 15 years. Rich whites, the most fearful among South Africans, are actually the least endangered. Most victims are poor and black.

Though both the accused and the victim in the Pistorius case are white, race is never far away. … the case in fact involves a third protagonist, “the threatening body, nameless and faceless, of an armed and dangerous black intruder”. …

Actually, in proportion to their numbers in the general population, whites and Indians are more likely to be victimized by the criminal class in South Africa.

UPDATE I (4/21): A reader affirms the above, writing as follows:

“I have so often, ever since the dreadful act that ended the life of Oscar Pistorius’ girlfriend, wanted to write to you Ilana, and say: Please tell your readers about the ghastly fear that every Afrikaner suffers from; the fear that he would be murdered in the most atrocious manner, mangled, tortured, raped before family members;slaughtered. So thank you for being true to the truth. His is the insane reaction of anyone—especially an Afrikaner living in his birthland—who knows what he will suffer at the hands of black criminal gangs who almost have permission to murder from the silent government. You, Ilana, are the right person, at the right time to make this known.”

UPDATE II: Via Brian James Smith on Facebook: Thanks to Cuan Elgin with the below list. Nothing to fear? South African justice is seen to be working like this circus of a trial…? Think again. The reality of South Africa this past week.
Black-on-White attacks: 7 Days. 20 Attacks. 27 Victims. 3 Women Raped. 7 People shot. 6 People Murdered:
9 April: Leon Pretorius (50) and his wife Phylis (49) were attacked at their place of business in Bloemspruit. Leon was shot twice. He is in hospital.
9 April: An Elderly man was attacked and murdered in his home in Dinwiddi. He was stabbed and his neck was broken.
9 April: An elderly couple was attacked, assaulted, tied up and robbed in Helderkruin.
10 April: A Family was attacked in their home in the Featherbrooke Estate. The mother and daughter were assaulted and the father was shot. He is recovering in hospital.
10 April: A 27-year-old woman was attacked by 4 black men. She was abducted and raped.
10 April: ‘A 58-year old woman was attacked and raped at the Anstey’s Beach Guest House in Brighton Beach.
10 April: The Lombaard couple was attacked on their farm in Tulbach. They were able to defend themselves and the attackers fled.
11 April: Lazlo (87) and Carol Bercsenyi were attacked in Bon Accord. They were hacked with axes. Lazlow died from his injuries.
12 April: Jaap Pretorius (52) is in a critical condition after an attacked on him and his fiancé in Bloemfontein. He was shot in the head.
12 April: A 62-year-old man was attacked in his holiday home in St. Francis. He was assaulted, tied up and robbed.
12 April: Vicus Botha (63) was assaulted in front of his home in Pietermaritzburg. He was badly beaten and died from his injuries.
13 April: A 48-year-old woman and her husband were attacked by 4 black men in their home in Benoni. The woman was raped by the attackers in front of her husband.
14 April: Kobus Nieuwoudt (41) was attacked, assaulted and shot in Ontdekkerspark.
15 April: Rina Hough (65) was stabbed to death at her home in Senekal.
15 April: Bart Klopper (63) was attacked and assaulted at his farm in Edeville. He sustained serious head injuries.
15 April: Johan Nel and his 13-year-old son were attacked and assaulted on their farm in Wolmaransstad by 6 black men armed with CZ88 pistols.
15 April: Frik Bodenstein (58) was attacked on his farm in Witbank. He was hacked with machetes and is recovering in hospital.
16 April: Johan Bornman and his wife were attacked in their farm in Vredefort. Johan was shot in his face and shoulder and is in hospital.
16 April: W/O Steven Britz (44) was shot dead at the Klapmuts Police Station.
17 April: Hannes Duvenhage (68) shot dead in Ermelo

Morality And Religion

Constitution, Founding Fathers, History, Law, Morality, Religion

On this Good Friday and Passover, it is worth remembering George Washington’s message on morality and religion, in his 1796 Farewell Address.

“Washington—in light of the dreadful events which had occurred in Revolutionary France—wished to dispel for good any notion that America was a secular state. It was a government of laws but also of morals,” writes historian Paul Johnson, in The History of the American People. “Of all the dispositions and habits which lead to political prosperity,’ he insisted, ‘religion and morality are indispensable supports.’ Anyone who tried to undermine these ‘great pillars of human happiness, these firmest props of the duties of men and citizens,’ was the very opposite of a patriot.” (P. 229)

There can be no “security for property, for reputation, for life, if the sense of religious obligation desert the oaths which are the instruments of investigation in courts of justice.” Nor can morality be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.”

What Washington was saying, explains Johnson, is that America, “being a free republic, dependent for its order on the good behavior of its citizens, cannot survive without religion. And that was in the nature of things.” (P. 229)

It’s hard to reconcile modern-day USA with the America the Founding Fathers bequeathed and envisaged. The law, a branch in what has become a tripartite tyranny, has plunged Americans into a struggle to express their faith outside their homes and places of worship.

Forgotten in all this is that religion is also a proxy for morality. (And I say this as an irreligious individual.)

UPDATED: Rage Against The Machine & For The Rancher

Justice, Law, Liberty, Natural Law, Private Property, Rights, States' Rights, The State

On April 11, we breathed a sigh of relief: “The Tyrant has disbanded, for now. But He’ll be back. Be vigilant, brave Bundys of Bunkerville, Nevada.” Indeed, as Ben Swann of “The Truth In Media Project” (Via LewRockwell.com) divulges, “Sources Inside The BLM and Las Vegas Metro Say Feds Are Planning A Raid On Bundy Home”:

… hundreds of federal agents are still at the Bundy Ranch and the area continues its status as a no-fly zone. Despite major media reports that the Nevada Bureau of Land Management is retreating, the remaining activity that still surrounds the ranch illustrates a different scenario.

Not only is the BLM not actually backing off of Cliven Bundy, Sheriff Richard Mack of the Constitutional Sheriffs and Peace Officers Association has revealed stunning information: on Ben Swann’s radio program, Mack said that he has received intelligence from multiple, credible sources inside the BLM and the Las Vegas Metro that there is “no question” that the federal government is planning a raid on the Bundy home and the homes of their children who live on the property.

According to Mack, the so-called retreat was nothing more than theatrics. “It was a ploy to get people to back off, to get people out of the way. They weren’t expecting us to get this amount of people here. They were surprised by the numbers and so they wanted a way to get us out of here. This was a ploy to get us out of here and then they’re going after the Bundys.” Mack said that when he was at the Bundy ranch on Saturday there were an estimated 600 to 800 protesters present when federal agents were releasing the cattle. …

… Mack said that he had been told by Bundy that the federal government is actively shutting down the ranching industry, specifically in Clark County. He also revealed that there used to be 53 ranches in Clark County. All of those ranchers have been put out of business, except for Bundy who is still trying to hold on. “Every American should be outraged by it,” said Mack. The ranch has been in Bundy’s family since 1877. …

MORE.

UPDATE: What the statists are saying:

BRET BAIER, ANCHOR: Clive Bundy ranched in this particular area of Nevada since the 1880s. And he had grazing rights he says that preempts and predates, he says, the federal authority over the land. So when the federal government decided to say that the desert tortoise was endangered and took away, and there you see the tortoise, the BLM, the Bureau of Land Management, took away the grazing rights, Bundy refused to comply, and he lost in court three times. But it started this back and forth that really came to a head this weekend.

Let’s bring in our panel, Tucker Carlson, host of “Fox & Friends Weekend,” A.B. Stoddard, associate editor of The Hill, and Juan Williams, columnist with The Hill. Tucker, it seems like all parties have backed down.

The Bureau of Land Management had this in a statement, “Due to escalating tensions, the cattle have been released” — they were holding the cattle — “from enclosures in order to avoid violence and help restore order. Safety has always been our number one priority and the bureau of land management and national park service appreciates the support of those who called for a peaceful conclusion to the operation.” What about this?

TUCKER CARLSON, FOX NEWS HOST: Thanks heaven. It was moving in an ugly direction, and I think the feds exacerbated it by showing up with snarling dogs and drawn weapons. That’s appropriate when you are dealing with a drug cartel, not with an elderly rancher.

On the other hand, the Bundys don’t have a legal case that I can see, to be totally honest about it. And this is public land. This is not land that they own. And if you are going to use public land for profit, you have to pay for it, and they haven’t. And so the bottom line, and I think this is something conservatives ought to remember, if you want a ranch without any impediment at all, you have to buy your own ranch. That is the essence, that is the core principle behind private property which undergirds conservatism. So I have a lot of sympathy for the Bundys. I think they were completely mistreated by the federal government. But I still think it’s important to point out that this land does not belong to them, and that’s not a minor distinction. It’s the essence of private property. Sorry.

BAIER: A.B.?

A.B. STODDARD, ASSOCIATE EDITOR, THE HILL: It wasn’t that he was denied grazing rights. He refused to pay the grazing fees. So he could have had his cattle grazing on federal land but he refused to pay up to $1 million in grazing feeds.

So the BLM could not have bungled this more by, A, coming in and tasering his son, which then became a viral video. Agents from the BLM also came up behind Cliven Bundy’s sister and knocked her down on the ground. This is something they have been dealing with for 20 years. They knew exactly who would be there protesting with their weapons. They knew how mad everyone would be and how this would escalate. They did not plan well for this.

They have now removed all this cattle and because of raised public concerns, brought the cattle there. They are never getting that cattle off that land. The BLM is out of leverage and it’s been peacefully concluded because they have got nothing left on Mr. Bundy.

BAIER: Juan?

JUAN WILLIAMS, SENIOR EDITOR, THE HILL: Well, I think what really talking about here is conservative angst over the sense that government has grown too large, too powerful. The government controls huge swaths of the western part of this country. And even local and state officials sometimes have disputes with federal authorities.

But the fact is, as Tucker said, this is public land. And despite his claims going back to the 1880s that his more Mormon forefathers used this land, it is public land. It’s not his land. And even by his own admission he owes the government, maybe not $1 million, but $300,000 that he has not paid.

So the courts have ruled against him three times, as you said, Bret. He doesn’t have a leg to stand on in that regard. But in terms of the larger picture, I think you have to worry about Waco, you have to worry about Ruby Ridge when people start showing up with guns and saying they are willing to take on the federal government.

MORE @ Bret Baier’s Special Report