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Illinois High Court: No Sec. of State Signature Needed for Burris

January 9th, 2009 by Bryan Lieb

CNN is reporting that the Supreme Court of Illinois has ruled (.pdf opinion) that the signing of Roland Burris’s certificate of appointment to the U.S. Senate by the Illinois Secretary of State is not a necessary prerequisite to Burris’s appointment.

The opinion is short, and nuanced in the sense that Burris’s request for a writ of mandamus (whereby the court orders a public official to do something she is required by law to do) is denied. The court says the Sec. of State’s signature isn’t needed on the document, so no mandamus is necessary. The upshot is that by losing the mandamus argument, Burris wins. The Sec. of State does NOT have a veto power over the legal act of the Governor.

Gov. Blagojevich’s impeachment has now officially been recommended by an overwhelming majority (114-1) of the Illinois House. The state Senate will now hold a trial and vote whether or not to convict. This vote could occur as soon as February.

I presume at this point that Burris will be awarded his Senate seat, considering the Democratic leadership’s radical change of tune. A possible if far-fetched alternative would be for the Democrats to foot-drag and wait for Blagojevich’s conviction, whereupon the Lt. Governor would take over and appoint someone other than Burris (whereupon we’d have a legal/constitutional dumpster fire on our hands). But given the Democrats’ warming to Burris, this outcome seems exceedingly unlikely.

UPDATE: Burris got in, but now his future is uncertain due to his inability to make consistent statements as to whether he raised money for (now impeached) former Gov. Blago in return for being considered for the Senate seat. It now appears that Burris admits to doing so.

Posted in Constitutional Law, Politics, Politics and the Law | No Comments »

More Burris: Walter Dellinger’s Op Ed

January 7th, 2009 by Bryan Lieb

Today’s New York Times features an op ed by notable attorney Walter Dellinger. It’s a concise brief on the Burris senate appointment standoff, concluding that Burris should be seated.

If the Democratic leadership is afraid the mere taint of Blagojevich’s appointing Burris will lose the seat to Republicans in the next election, it occurs to me that a challenge to Burris in the Democratic primary could solve the problem. I haven’t heard this mentioned anywhere, and I wonder why not. If Illinois Democrats want someone other than Burris for their candidate in the next general election (2010), let them express that in the primary. If by that time they want Burris, then more power to Burris. Seems to me this is a better solution than the increasingly silly circus the near-baseless blocking of Burris has become.

Posted in Constitutional Law, Politics, Politics and the Law | No Comments »

The Burris Appointment: Tactics and Con(stitutional) Law

January 6th, 2009 by Bryan Lieb

As we all know, Illinois Gov. Rod Blagojevich is under heavy fire after being wire-tapped discussing how he could leverage his power to appoint Obama’s senate replacement into substantial benefits from potential seekers of the seat. Blagojevich has denied wrongdoing and switched gears, appointing a super-clean, highly qualified Democrat, Roland Burris. But Harry Reid and the senate Democrats have set about to deny Burris his seat. Reading between the lines, they’re afraid Burris (though clean, and not associated with the Blagojevich corruption scandal) will be so tainted by merely being picked by Blagojevich, that a Republican will defeat Burris in the next election. There is an ongoing discussion of the tactics and law playing out here over at the Balkinization blawg (see the two posts of Monday, Jan. 5, and comments). Recommended reading.

I’m pretty sure the Democrats’ latest ploy — to deny Burris entry because his certificate wasn’t signed by the Ill. Sec. of State (who refused to sign it, contrary to his statutory duty) – will fall flat. The Sec. of State can’t possibly have a “veto power” over a legal act of the governor. But the Democrats have stronger legs to stand on (none of them necessarily winning). This should be a good show.

Posted in Constitutional Law, Politics, Politics and the Law | No Comments »

Repealing Tax Law by Fiat: Paulson as Dictator?

November 11th, 2008 by Bryan Lieb

If you have more than a passing interest in “The Bailout” this Washington Post article is worth your time. Condensed highlights:

The change to Section 382 of the tax code — a provision that limited a kind of tax shelter arising in corporate mergers — came after a two-decade effort by conservative economists and Republican administration officials to eliminate or overhaul the law, which is so little-known that even influential tax experts sometimes draw a blank at its mention. Until the financial meltdown, its opponents thought it would be nearly impossible to revamp the section because this would look like a corporate giveaway, according to lobbyists.

Section 382 of the tax code was created by Congress in 1986 to end what it considered an abuse of the tax system: companies sheltering their profits from taxation by acquiring shell companies whose only real value was the losses on their books. The firms would then use the acquired company’s losses to offset their gains and avoid paying taxes.

The sweeping change to two decades of tax policy escaped the notice of lawmakers for several days, as they remained consumed with the controversial bailout bill. When they found out, some legislators were furious. Some congressional staff members have privately concluded that the notice was illegal. But they have worried that saying so publicly could unravel several recent bank mergers made possible by the change and send the economy into an even deeper tailspin.

“Did the Treasury Department have the authority to do this? I think almost every tax expert would agree that the answer is no,” said George K. Yin, the former chief of staff of the Joint Committee on Taxation, the nonpartisan congressional authority on taxes. “They basically repealed a 22-year-old law…”

“It was a shock to most of the tax law community. It was one of those things where it pops up on your screen and your jaw drops,” said Candace A. Ridgway, a partner at Jones Day, a law firm that represents banks that could benefit from the notice. “I’ve been in tax law for 20 years, and I’ve never seen anything like this.”

More than a dozen tax lawyers interviewed for this story — including several representing banks that stand to reap billions from the change — said the Treasury had no authority to issue the notice.

Several other tax lawyers, all of whom represent banks, said the change was legal. Like DeSouza, they said the legal authority came from Section 382 itself, which says the secretary can write regulations to “carry out the purposes of this section.”

Wait a minute. The purpose of 382 was to minimize abuse of shell companies reducing the taxes of the acquiring firm in a merger? And now Paulson is “carrying out the purposes of the section” by eliminating the limitations on using shell companies to reduce the taxes of the acquiring firm in a merger? What!?

[C]orporate tax lawyers quickly realized the enormous implications … Administration officials had just given American banks a windfall of as much as $140 billion.

That’s $140 billion above and beyond anything discussed pertaining to “The Bailout.” So from what I’ve gathered, billions of taxpayer dollars have been pumped into the banks, with the idea of unfreezing the “credit crisis” (brought on by investment bank failures born of the sub-prime mortgage crisis) by encouraging lending. However, no strings (or the wrong strings) were attached, so big the banks aren’t lending the money — instead they’re just acquiring smaller banks. And with the repeal-by-fiat of a 22-year-old law (!!!), the big banks are receiving a substantial tax windfall on these acquisitions.

Somewhere there is a line between propping up the financial system (for everyone’s benefit) and unjustly enriching major financial entities. Meet that line. Oh wait, it’s back there…

President-Elect Obama has his work cut out for him. This cliche brought to you by my desire to mention President-Elect Obama in this blog. Congratulations!

Posted in Elections, Financial Crisis, Politics, Tax Law | No Comments »

Who Owns the Moon? And Other Exotic, Barely Inhabitable Places.

October 23rd, 2008 by Bryan Lieb

Good primer on Space Law in Slate’s Explainer column today. India launched a moon mission yesterday, wherein an unmanned orbiter will map Lune’s polar regions. Also on the agenda: detecting subsurface uranium. But, if found, who’d own it? Who does our bright, white, phase-shifting satellite belong to, for that matter? Does planting a flag on the lunar surface (or elsewhere) have fifteenth-century legal consequences? To the extent we’ve overcome the Law of the Jungle since then, no. But ambiguities abound.

If a country—or a private company—were to try opening a mine on the moon, it would be stepping onto uncertain legal ground. The Outer Space Treaty is silent on the question of extracting natural resources in space, and legal experts differ over what language mandating “free access” to all areas of space might mean for mining.

The Explainer column links to and discusses various international treaties including the Outer Space Treaty, the Moon Treaty, the Antarctic Treaty, and the Law of the Sea with regard to ownership of the Arctic sea bed. Barely inhabitable but potentially or actually resource rich! Fun stuff.

Posted in International Law, Space Law | No Comments »

US Supreme Court Allows Disputed Registrations in Ohio

October 17th, 2008 by Bryan Lieb

Anywhere between 200,000 and 600,000 new Ohio registrations were at issue. A federal district court had ruled that the new registrations would be in question until the Ohio Secretary of State updated a voter information database (a near-impossible task in the time remaining until election day).

The full panel of the Sixth Circuit had affirmed (by a 9-6 vote) the district court’s decision earlier this month. The Supreme Court (in an extraordinarily rapid move) has today reversed the Sixth Circuit and vacated the TRO placed on the Secretary of State by the district judge. The short per curiam unanimous opinion is here (pdf). Discussion is here: CNN, Scotusblog, New York Times.

Considering that in 2004 George W. Bush won Ohio’s 20 electoral votes over John Kerry by about 118,000 votes, and that a large majority of new registrants are thought to lean Democratic, the number of new registrations at issue here could be pivotal in a close election.

Posted in Elections, Politics and the Law, SCOTUS | No Comments »

U.S. Citizen Children: Helpless in Face of Parents’ Deportation

September 10th, 2008 by Bryan Lieb

The immigration debate has never been one of “my issues.” There is only time to keep up with so much. But a story on CNN today refocused my consciousness (and my conscience) on one particular facet of the debate: the inhumanity, moral blindness and questionable constitutionality of deporting the parents of helpless U.S. citizen children. I also learned about the efforts of the Organization to Help Citizen Children to intervene in the trauma inflicted upon these children. The plight of our fellow citizens is an matter of national honor well worth talking about, and can and should be remedied post haste.

A child born on United States soil is automatically a United States citizen per our Constitution’s 14th Amendment:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

And don’t just note the bolded portion. The clauses on the privileges and immunities of citizens, the right to life, liberty and property (echoing the Declaration’s “Life, Liberty and the pursuit of Happiness”), to due process and equal protection of the laws, are among the most relevant and oft-cited provisions in modern constitutional jurisprudence.

According to the CNN piece, about 3 million children who are United States citizens have at least one parent who is an “illegal immigrant.” As our immigration laws are currently enforced, the parent or parents of child citizens can be deported (sent back to their country of origin – often Mexico) — leaving the child in the nightmare scenario of being ripped from their beloved protectors and providers or following them to a country where they don’t even speak the language of their new schoolmates.

Seems to me, the wrongness of this outcome cannot be overstated — and reversing this torturous, dark corner of our immigration policy is something that the vast majority of Americans could agree on regardless of one’s position on illegal immigration generally. Regardless of any other considerations, the child’s U.S. citizenship should prevail if the parent has not committed a felony, and the child should not face de facto deportation — a fate in no way compatible with the fact of citizenship.

I am not suggesting that children should be completely immunized from the acts of their parents in general. I recognize that every day innocent citizen children suffer when their felon parents (also U.S. citizens) are incarcerated. But seeking a better life in the United States is not the moral equivalent of a criminal offense, is it? While it may or may not make sense to deport individuals who are detained after having immigrated illegally (that is the overarching debate), once the privileges and immunities of a U.S. citizen become involved by virtue of a child’s presence, I feel morally and constitutionally justified in saying that “the statute of limitations” has expired on our government’s (legal and moral) justification to deport the child’s parents.

If the above result increased the motivation of illegal immigrants to have children on U.S. soil, or even to cross the border when pregnant, then so be it. It is a small price to pay for the assurance that citizen children will be protected and not treated as second class citizens. As a policy matter, immigrants with children will be even more likely to be productive workers and stay clear of trouble, right? Motivated to provide for their child, surely the answer is yes. Without looking, it seems obvious that court cases have already gone against citizen children trying to shield their parents from deportation, and I may delve into this in a future post. But regardless, how can it be compatible with our national principles and ideals for our Constitution, through some technicality, to permit this? We can and must do better.

Who can possibly be against the protection of citizen children in this situation? As I think of every possible political persuasion from left to right on the spectrum, I cannot think of one group who could oppose the protection of citizen children without rendering themselves hypocrites vis-à-vis their other positions. Thinking of my own children, I can only imagine how unbearable facing such a situation would be. Stopping the infliction of trauma on the defenseless should be something we can all agree on, the heart of a much needed bi-partisan compromise on illegal immigration.

Until we right this wrong, fantastic organizations like Organization to Help Citizen Children (OtHCC) are making heroic efforts to lessen the harm done to displaced citizen children. OtHCC’s chief focus is to:

Solicit churches along both sides of the border to “adopt” deported families and provide assistance to them.

This strategy identifies families on either side of the border that would provide support for the “adopted children.” On the U. S. side, a family would be asked to take in a U. S. -born child into their home and provide care for them during the school week. This would enable the children to pursue their education through the public schools of a particular state.

On the Mexican side, a family would be asked to provide temporary shelter and assist the undocumented members of the “adopted” family in obtaining employment and locating a permanent place to live.

Truly a noble pursuit that puts the faith and human spirit of those involved to work righting a terrible wrong. Simultaneously, OtHCC strives to raise public awareness of the plight of citizen children, press for priority status for these families in future federal legislation and call for a moratorium on the deportation of parents of U.S.-born children, and pursue legal remedies on behalf of these children. OtHCC accepts donations here. If you feel like I do, tell your friends.

Posted in Childrens' Issues, Constitutional Law, Immigration Debate, Politics | No Comments »

Georgia on Russian Invasion: ‘West’ Should Wake Up

August 8th, 2008 by Bryan Lieb

Russian troops, armor and aircraft invaded Georgian territory today in the restive ‘South Ossetia’ region of northern Georgia. The attack was in response to Georgia’s capture yesterday of the separatist-held regional capital, Tskhinvali (map). Russia has long supported the separatists and wants to annex the region. Georgia’s strong alliance with the United States, desire to join NATO and basing of U.S. military trainers has antagonized Russia since Georgia achieved independence from the crumbling Soviet Union in 1991.

Georgia is the third largest contributor of troops (2000) in Iraq after the U.S. and Britain. Georgia announced the immediate withdrawal of 1000 troops to face the fighting back home.

CNN’s Johnathan Mann interviewed Georgia’s President, Mikhail Saakashvili. The compelling video is here (Georgian president speaks). Composed and speaking fluent English, Saakashvili was frankly inspiring:

Q: What should the United States and the West do now?

A: Wake up. Wake up. What is happening now is not about Georgia, it’s about the basic values the West has, the basic values that the U.S. has always preached to us. We are a small country. We are attacked because we wanted to be free. We are attacked because we wanted to build genuine democracy. We are attacked because we built a non-corrupt, free enterprise society that is prospering and thriving. We are under attack because we never wanted to accept the old corrupt rules of the game and wanted to be close to the West and go into the Western fold where we believe we belong – into the European fold. If Americans and Europeans don’t stand up for their own values, for their own principles, then those principles and values will be in danger – today in Georgia, tomorrow elsewhere. And this will be a never ending story.

Q: What would you ask U.S. President George Bush to do right now for your people?

A: Look, we are in the same situation as Finland was in 1939 when Stalin’s brutal dictatorship attacked because it wanted a piece of Finnish territory. We are in the same situation Afghanistan was in 1979. It took the courage of Ronald Reagan to reverse the Soviet adventures in Afghanistan. Looks like the adventures are back, and peace is endangered again, and human rights and freedom are in grave danger again. President Bush always said Georgia is a beacon of liberty, a successful case of his whole freedom agenda. But we didn’t do it for him, we did it for our own people – we believe in democracy, we believe in freedom. You know, I went to University in America and I was always taught that America stands up for its freedoms, and America always helps freedom loving countries. This is the moment of truth for everybody, for President Bush, for the United States, the rest of the Western world and for all of us – are we are willing to stand up for our own ideals? Are we willing to fight for freedom? Are we willing to protect people who deserve to be protected? … This is really a crucial moment in history for Europe, and high time to wake up for everyone.

Seems to me that Russia is in clear violation of international law. The United States should fully support Georgia and not relent until every Russian soldier has withdrawn from Georgian soil. Russia is a serial bad actor on the world stage, and must not be allowed to bully its smaller neighbors. What do we stand for if not for freedom from aggressive tyranny for ourselves and our allies?

NPR has excellent coverage here, and expert commentary here.

Posted in International Law | No Comments »

EEStor & the Main Core: Legal and Technological Notes

July 30th, 2008 by Bryan Lieb

I reported on the development of EEStor ultra-capacitors back in Sept. ‘07. Anticipation is lately coming to a boil, and press releases are flying. Production (rather than prototype) models of the breakthrough electrical storage device may be announced before year’s end, and a hands-free automated production line is apparently undergoing third-party verification.

An anonymous (but independently verified legitimate) blogger in periodic contact with EEStor Inc., has created an excellent site to post information and comments from those knowledgeable in the scientific debate and investment opportunities arising from the EEStor saga. The tension is palpable as every tantalizing bit of news and rumor is sliced and diced by naysayers and true believers, any of whom may or may not have an agenda!

My legal take is that the EEStor principals (who are legitimate and reputable businesspeople) would not expose themselves to the civil and criminal fraud charges that would likely threaten if EEStor turns out to be some sort of sham (a claim that hasn’t yet been fully put to bed). Too much funding money has changed hands based on what has been said and implied at this point. Electric car manufacturer Zenn Motor Company, leading US defense contractor Lockheed-Martin, and famous venture capitalists Kleiner Perkins Caufield & Byers are all early investors/licensees.

In other news… are you one of ~8,000,000 Americans unknowingly residing in the scarily-named ”Main Core“?

My legal tak|||THE BLOG IS BEEN CONFISCATE BY MAIN CORE. FREEDOM OF YOUR SPEECHES IS BEEN REVOKE. YOU WILL WAIT MORE REINSTRUCTIONS.|||

Uhhh… I (obviously) didn’t write that. I’m heading for the hills folks!

Posted in Constitutional Law, Environmental Law, From the Consumer Desk, Homeland Security | No Comments »

Heller Got His Gun: An Individual Right to Keep and Bear Arms

June 30th, 2008 by Bryan Lieb

District of Columbia vs. Heller (opinion) is in the books, and the Second Amendment now protects a elementary individual right to keep and bear ordinary firearms for self defense without federal interference. The decision leaves open the question of whether the Second Amendment is “incorporated against the states” (DC being a federal enclave). I logged some background earlier, here and here.

DC’s gun ban permitted no hand guns (pistols) in the District, nor any “long guns” (rifles, shotguns) unless kept disassembled and unloaded or trigger-locked. The 5-4 decision in Heller threw out these restrictions as violative of the Second Amendment’s command that:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Justice Scalia wrote for the majority, joined by crucial swing voter Kennedy and fellow conservatives Alito, Thomas and Chief Justice Roberts. Opposed were the more liberal Justices Stevens, Breyer, Ginsburg and Souter, with Stevens and Breyer writing separate dissenting opinions joined in by all dissenters.

The opinions are exquisitely lawyered arguments. Both sides go into minute detail crafting their justifications and expend considerable ink refuting the opposing position and rebutting those refutations. This isn’t necessarily unusual in Supreme Court opinions, but in reading these I was struck that this must be the finest example of the genre. I was left with the strong impression that it’s impossible, objectively, to tell who is right.

Scalia treats the “Militia” portion (the first half) as an irrelevant ”preamble”:

But apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause.

…

‘It is nothing unusual in acts . . . for the enacting part to go beyond the preamble; the remedy often extends beyond the particular act or mischief which first suggested the necessity of the law.’

…

[I]n America “the settled principle of law is that the preamble cannot control the enacting part of the statute in cases where the enacting part is expressed in clear, unambiguous terms.”

Then he argues that according to the documents of the time, “people” meant all able men. And ”Timothy Cunningham’s important 1771 legal dictionary defined “arms” as”:

“any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.”

“Useth in wrath.” Gotta love that.

Scalia dwelt at length upon what seems to me to be the very Lockean, liberal (rather than Hobbesian ultra-conservative, subjection to sovereign authority, rejection of checks and balances, tolerance of abuses of power) idea (ideal?) of armed rebellion against government tyranny quoting many fine thoughts:

“This may be considered as the true palladium of liberty . . . . The right to self-defence is the first law of nature: in most governments it has been the study of rulers to confine the right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.”

…

It was understood across the political spectrum that the right helped to secure the ideal of a citizen militia, which might be necessary to oppose an oppressive military force if the constitutional order broke down.

…

There are many reasons why the militia [ie: an armed populace, according to Scalia's view] was thought to be “necessary to the security of a free state” … when the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny.

An interesting choice of support by this particular Justice in the current political climate. In a hypothetical scenario one wonders if millions of armed citizens marching on Washington D.C. to “resist tyranny” would be hailed by Scalia as heroes or snubbed as traitors. Sign Scalia up for the rebellion!

Of course, the idea of widespread armed rebellion in the United States is so far beyond the pale as to be laughable – which begs the question as to why Scalia repeatedly cites it. The answer is his reliance on “originalism” as his chief interpretation tool. Trying to give effect to what the Founders meant at the time, regardless of changes wrought in the following 2+ centuries. However, Justice Stevens also takes an originalist approach in his opinion, and comes to an opposite conclusion. In the vast amount of heady commentary written on Heller at Balkinization, I noted one scholar’s opinion that Stevens did this on purpose to contest Scalia’s philosophy that only originalism could lead to a correct view of our Constitution.

It’s funny to me that the Ninth Amendment isn’t specifically used to support an individual right to self defense:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Scalia repeats several times that self defense is a right that predates the Constitution. I agree, and I think the right of self defense is the most basic and fundamental human right – a natural right from which all other rights flow. Arms are necessary for self defense because without adequate arms, we would be at the mercy of the physically strong in a confrontation. Our minds have been the key to our success as a species, and the technology (firearms) that is a product of our minds and extension of ourselves ought to be reasonably available to anyone in order to “level the playing-field” when self defense is necessary.

So I agree with the decision, but on Ninth Amendment rather than Second Amendment grounds. It still bears repeating (because it’s funny) that the late Mr. Conservative Strict Constructionist Chief Justice Burger said of an “individual right to bear arms”:

In 1991, former Chief Justice Warren Burger even described the “individual rights” view of the Second Amendment as “one of the greatest pieces of fraud—I repeat the word ‘fraud’—on the American public by special interest groups [the National Rifle Association] that I have ever seen in my lifetime.”

Must be the ”living Constitution” in action, the strict constructionists of today seeing things so differently. I can enjoy the irony while appreciating that the conservative justices ”discovered” a “new right” for us that I approve of. They will of course protest that the right has been there all along. But Burger would disagree.

Suit has been filed in Chicago to overturn that city’s gun regulations similar to the ones thrown out in Heller. This will be the next big battleground in the ongoing Second Amendment litigation. Will watch this one and update as information comes out.

Posted in Constitutional Law, Gun Control/Second Amendment, Supreme Court | No Comments »