Tag: Law/Crime

DA’s and Their Porn

Huh?:

A Manassas City teenager accused of “sexting” a video to his girlfriend is now facing a search warrant in which Manassas City police and Prince William County prosecutors want to take a photo of his erect penis, possibly forcing the teen to become erect by taking him to a hospital and giving him an injection, the teen’s lawyers said. A Prince William County judge allowed the 17-year-old to leave the area without the warrant being served or the pictures being taken — yet.

The teen is facing two felony charges, for possession of child pornography and manufacturing child pornography, which could lead not only to incarceration until he’s 21, but inclusion on the state sex offender data base for, possibly, the rest of his life. David Culver of NBC Washington first reported the story and interviewed the teen’s guardian, his aunt, who was shocked at the lengths Prince William authorities were willing to go to make a sexting case in juvenile court.

What happened here is that a 15-year-old girl sent some photos to a 17-year-old boy. At this point, the nature of those photos and the relationship of the two teens is unknown. He then sent her a video of his dick. The 15 year-old’s mother saw the video and contacted the police. The police charged with him making and distributing child pornography but had to drop the charges at trial because they hadn’t certified he was a minor. They are apparently bringing new charges for a July court date and have filed a warrant to take a picture of his erect member.

I held back on posting this to see what the Manassas cops had to say for themselves. I got caught on the Kaitlin Hunt thing a couple of years back. Their claim is that the kid sent video to the 15 year-old after being repeatedly told to stop. Assuming that is true — we’ve seen law enforcement publicity flacks lie before in controversial cases — they could be charging him with harassment or something like that (sex between consenting 15- to 17-year-olds is legal in Virginia). But no, they appear to be going with the absurd route of bringing kiddie porn charges against a teenager for taking pictures of himself. If convicted, he would be in prison until at age 21 and on a sex offender registry for the rest of his life. So they want to ruin this kid’s life over a dirty video.

To add insult to injury, they now want to collect evidence by strapping this kid to a gurney, giving him a drug to make him erect and taking more pictures of his genitals (in addition to ones they’ve already taken). Keep in mind: under the legal theory they are advancing, he is the victim here. He’s not being charged with sending out pictures of other nude teens; just himself. How is this not further victimization of the supposed victim?

(Doug Mataconis, in the comments to his post, notes that there is not a fifth amendment problem, since this is regarded as evidence collection, not testimony.)

Look, I don’t want teens sending naked pictures of themselves around willy-nilly either. But the legal system is not designed for the subtleties of a parental chat. Once you call in the legal system, it deals with things the way it is designed to: with maximum firepower.

At the very least, we need to rewrite our laws to deal with this. It is insane and ridiculous to charge teens with kiddie porn for taking pictures of themselves. Teenagers have been taking naked pictures of themselves since the camera was invented. Hell, somewhere out there is probably a cave painting some prehistoric teenager made of his dick in an effort to impress a cute cavegirl.

If this kid was sending unsolicited dick picks, there are harassment laws and indecent exposure laws to deal with it. But to bring these kind of charges? And to demand this kind of medical procedure? “Teaching someone a lesson” by ruining his life is not a sane approach to law.

Khattalah Capture

One of the terrorists responsible for the attack on our embassy in Benghazi has been capture:

U.S. forces working with the FBI captured a key suspect in the deadly 2012 attack on the American diplomatic compound in Benghazi, Libya, U.S. officials said Tuesday.

Libyan militia leader Ahmed abu Khattalah was captured over the weekend, officials said. It is the first arrest and detention by the United States in connection with the Benghazi attack.

Abu Khattalah will be brought to the United States to face charges “in the coming days,” said Edward Price, a spokesman for the National Security Council.

Abu Khattalah, who faces three federal criminal charges, will be tried in U.S. courts, said Attorney General Eric Holder.

Only took 21 months. During that time, he was running around openly in Libya, giving media interviews. But I’m glad we finally have him.

Parents Into the Machine

Lenore Skenazy recently put up this story out of DC. The basics are that two girls, ages 6 and 7, went into their backyard. Without the permission of their parents, they wandered away and ended up in a nearby mall. A stranger spotted them and called the police. If you’re familiar with how our legal system works, you know what happened next:

The police came with admirable speed. Somewhat less admirably, they chose to put the girls in the cruiser (with no car seats) rather than, again, resorting to the completely available option of calling their parents to come get them. They brought the girls back to us a total of twenty minutes after they first walked out of the door. They could have just told us what happened and admonished us to keep better tabs on our children. They could have just handed over their official-looking little card about age restrictions (which they incorrectly believed to be law, but which in fact were only county recommendations) and told us not to let it happen again. But you see, when you call the police, this creates pressure on the police to Do Something. So what they did was arrest us—one parent from each family, our choice, with no chance for private conference to decide. They tried to arrest us for felony neglect of a minor, but apparently even the magistrate thought that was ridiculous, so they went for misdemeanor contributing to the delinquency of a minor instead. They informed us that we would be reported to the Department of Social Services and probably contacted by Child Protective Services — which we have been.

The families are now in the hell of CPS, facing trial, racking up thousands of dollars in legal fees and facing the possibility of losing their children. Oh, yeah, the children. Remember them?

I find it difficult to imagine that you know what it’s like to be afraid that your own government will punish you for having done your best to be a good parent. To be arrested for absolutely nothing anyone is even claiming that you did, in the middle of a peaceful afternoon of sewing and childcare. To jump every time the phone rings, every time a car slows down. To forget for a few minutes or an hour, as the days go by, and then suddenly remember with a sick feeling in the pit of your stomach. To have to let a stranger into your house—a stranger with the virtually unchecked power to take your children away from you—so that she can poke around and interrogate your child and decide whether you are fit parents. To see your confident, strong-willed child afraid to play outside or let her little sister do so, because the lesson she has taken from this is to “never go outside.”

This is not an isolated incident, by the way. Parents are routinely being harassed or arrested for letting any kid on the fair side of puberty out of their sight. Our legal system is making a clear statement: kids must be manacled to their parents at all times.

The fundamental problem is that too many Americans think of the police as being like Andy Taylor. They think that if you call the police in this situation — in any situation — they’ll just give the people a good talking to. Some of them do. But the system is heavily canted against anything approaching common sense. In the initial phases, it is designed to treat everyone like a criminal. There are massive disincentives to just let something slide. And there no disincentives to going to the wall and wrecking someone’s life over something trivial.

Let’s say the judge decided this was a stupid case and threw it out. Would the cops be punished? Would CPS? No. They would be praised for “doing their job” and giving the last full measure to make sure kids are safe even if what they did traumatized kids who were doing perfectly fine. Our system sees CPS investigation as something that only does good — it is pure benefits without costs. It doesn’t care about the people whose lives it turns upside down.

The whole system is set up to make a literal federal case out of everything. And it can be even worse. Out in Texas, the cops responded to a noise complaint with a SWAT-style raid, tasering a grandmother five times and dousing kids with pepper spray. We have built a legal system that believes that you can never go too far in executing the law, only not far enough.

Frankly, if I were in charge of DC, I would see this — as I see all law enforcement excesses — as a clear indication that someone’s budget needs to be cut. If CPS has so much time on their hands that they can waste resources on a case like this, they clearly have too many people in their employ and too few cases of genuine abuse. If law enforcement has so much jail space that they can arrest some parents because their kids wandered out of the backyard, they clearly have too much time on their hands.

The only way to stop these abuses is for there to be consequences. There won’t be, of course. So you can expect the next abuse to be even worse.

An Unsession

This sounds like a really good idea:

It’s no longer a crime in Minnesota to carry fruit in an illegally sized container. The state’s telegraph regulations are gone. And it’s now legal to drive a car in neutral — if you can figure out how to do it.

Those were among the 1,175 obsolete, unnecessary and incomprehensible laws that Gov. Mark Dayton and the Legislature repealed this year as part of the governor’s “unsession” initiative. His goal was to make state government work better, faster and smarter….

In addition to getting rid of outdated laws, the project made taxes simpler, cut bureaucratic red tape, speeded up business permits and required state agencies to communicate in plain language.

I’ve written before about why removing obscure out-of-date laws is important: such laws give law enforcement the ability to harass and arrest anyone they don’t like for trivial legal violations. They leave citizens in a state of perpetually violating some law somewhere. But Dayton’s changes go beyond that with real cutting of red tape and tax laws.

Notice that he didn’t “gut regulation” or anything else. He simple cut away the cruft that accumulate on any legal system over time.

This sort of thing is needed at every level but especially at the federal level. I would vote for any President who would stop making laws for a few years and overhaul the ones we have. We have a legal system where hundreds of billions, possibly over a trillion dollars, are lost to regulation and tax code every year. We have a regulatory structure that doesn’t make us any safer and caters to powerful interests. Democrats talk big on new energy sources but see nothing wrong with a regulatory system for just running a power line can run into a decade of legal bullshit.

An unsession for America. We need one. Badly.

The Death of the Judiciary

So this was happening:

A member of the Oklahoma House drafted a resolution Wednesday seeking the impeachment of state Supreme Court justices who granted a delay of execution to two death row inmates.

Republican state Rep. Mike Christian told The Associated Press that the five justices engaged in a “willful neglect of duty” when they granted stays of execution Monday to Clayton Lockett and Charles Warner, both of whom were scheduled to be executed this month.

Lockett and Warner, who aren’t challenging their convictions, have filed a civil lawsuit seeking the source of the drugs used to execute them. Pending the resolution of that lawsuit, they asked for a stay of execution.

The Court of Criminal Appeals has said it couldn’t weigh in on the delay of execution because it didn’t have the power or the authority, so the high court said a “rule of necessity” led to its decision Monday. Under the state constitution, the Supreme Court handles civil cases while the Court of Criminal Appeals takes those involving inmates.

The Court later dissolved the stay.

At issue here is that the State of Oklahoma is refusing to reveal the drugs they use to execute people. Ostensibly, this is to protect companies that manufacture those drugs from being harassed by anti-death-penalty activists.

I’ll get into the merits of the case in a moment. But what I want to focus on is what I see as a looming threat to an independent judiciary. Over the last couple of decades, we have seen a slow push to gradually eviscerate the independence of the judicial branch. Politicians rail against “activist judges”, each political side screams blue murder when SCOTUS rules against them and now we finally have impeachment proceedings because of a disagreement with a court. And this isn’t confined to conservatives. Every time SCOTUS rules against liberals, there are cries to impeach the justices or at least limit their terms (conveniently to just after the last Republican President left office).

While these cries might be satisfying to those who rail against “activist” judges and are still fuming from either the Obamacare or the Citizens United decision, I see this as fundamentally dangerous to liberty. Because the protection of our liberty and our Constitutional rights requires an active independent judiciary. Both sides should understand this. Conservatives have won key victories in cases like Heller because the bench decided to act against the “will of the people” as expressed through their legislature. And some of our most bitter defeats — Kelo and Obamacare, in particular — have come about because the judiciary wasn’t activist enough and wouldn’t overturn a law. Liberals have also won key victories — like last year’s gay marriage decision — when the judiciary has over-ruled the “will of the people”.

In the end, this boils down less to any real philosophy about the role of the judicial branch than to whining whenever that branch doesn’t do what we want. Objecting to bad court decisions is fine. In fact, I think it’s required in a healthy Republic. But the tone of the last few years had turned away from criticism to active attacks and calls to limit the independence of the judiciary.

This trend worries me. I have expressed this concern before, but it’s worth repeating. I fear that we are slowly moving toward a regime where there is basically no one protecting our Constitutional rights. Congress and the President rarely, if ever, consider the Constitutionality of their laws. They say that’s for the Courts (in fact, Bush said exactly this when signing the blatantly unconstitutional McCain-Feingold Law). Everyone seems to agree that Presidents are just supposed to enforce the law, never bother with whether those laws violate our basic freedoms (with the exception of the occasional veto). And with the railing against courts for “ignoring the will of the people/legislature”, we’re moving away from judicial review as well. So given these facts, who the hell is defending our Constitutional rights? Jon Stewart?

This is the complete opposite of how things should be. When the government acts, the branches of our government should be like the officers in a nuclear missile silo — nothing happens unless all three turn their keys. All three have to agree that it is within the power of government; all three have to agree that it does not violate our Constitutional rights. Congress must not pass laws that violate the Constitution; the President must veto ones that do and refuse to use unconstitutional powers that the legislature gives him*; the Courts must bounce any law that violates the Constitution.

(*To be clear, this doesn’t mean the President should act on his own or rewrite laws or ignore laws. This power, which would be used very rarely, would only be used in the negative sense of the President refusing to utilize powers that he deems unconstitutional, such as if Congress suspended habeas.)

Now as to this particular case: some commentators are avoiding talking about what the criminals did. I won’t. One shotgunned a teenager and buried her alive. The other raped and murdered a child. While I am neutral on the death penalty, these would probably be the guys you would want to apply it to.

But the issue here is not the horrible crimes that these vermin committed. The issues it that Oklahoma is using a secret recipe for lethal injection — a formula that tonight resulted in the botched execution of one of the two men in this case. When the methods of execution are secret, there is literally no way to decide if it constitutes cruel and unusual punishment.

Now maybe you think with what these guys did, they deserve to suffer. But we have laws and a Constitution for a reason and that reason is to protect everyone from the excesses of government. And when you chip away at anyone’s Constitutional rights, you chip away at everyone’s. The destruction of our Constitutional liberties always starts with people who everyone agrees are despicable, before proceeding to the rest of us. Free speech killers don’t start with Sesame Street; they start with the Klan and the Nazis. Surveillance fetishists don’t start with your backyard; they start with terrorists. And attacks on the protections in our criminal justice system don’t start with some kid smoking pot; they start with murderers and child molesters. There is good reason to believe that at least one innocent man has been executed and a new study claims that one in 25 death row inmates, and perhaps more, are innocent. Do they deserve to suffer?

We can not yield on Constitutional rights, not even with these pieces of human debris. Because once the freedom destroyers gain an inch, they will ask a mile.

But … even if we posit that the Court was wrong to delay these executions, a call for impeachment is ridiculous overkill. The Court did not set them free, commute their sentences or bake them cookies. They simply delayed their executions (as it turned out, for a few days). If the Courts are in danger of impeachment every time they make an unpopular decision, we might as well just do away with the Courts. Try people on Oprah and execute them on Springer. Who cares if innocent people are killed cruelly? It’s what the people want, isn’t it? That’s what baby rapists and child killers deserve, isn’t it?

An independent judiciary is going to make some mistakes and some bad decisions. But a non-independent judiciary that is subject to the whims of the mob is going to make bad decisions constantly. We already have two of our branches constantly doing the wrong thing. Do we really need the third to join in the fun?

Choking the Porn Money Chicken

Hmmm:

Despite being in good financial standing, adult film performers and others in the porn industry have had bank accounts abruptly terminated—and the U.S. Department of Justice (DOJ) may have had something to do with it.

Under “Operation Choke Point,” the DOJ and its allies are going after legal but subjectively undesirable business ventures by pressuring banks to terminate their bank accounts or refuse their business. The very premise is clearly chilling—the DOJ is coercing private businesses in an attempt to centrally engineer the American marketplace based on it’s own politically biased moral judgements. Targeted business categories so far have included payday lenders, ammunition sales, dating services, purveyors of drug paraphernalia, and online gambling sites.

Here are the details on Operation Choke Point:

The “chokepoint” in this operation is the nation’s payments infrastructure, the means by which merchants process nearly $5 trillion in consumer purchases in the U.S. each year. Federal law enforcers are targeting merchant categories like payday lenders, ammunition and tobacco sales, and telemarketers – but not merely by pursuing those merchants directly. Rather, Operation Chokepoint is flooding payments companies that provide processing service to those industries with subpoenas, civil investigative demands, and other burdensome and costly legal demands.

The theory behind this enforcement program has superficial logic: increase the legal and compliance costs of serving certain disfavored merchant categories, and payments companies will simply stop providing service to such merchants. And it’s working – payments companies across the country are cutting off service to categories of merchants that – although providing a legal service – are creating the potential for significant financial and reputational harm as law enforcement publicizes its activities. Thus far, payday lenders have been the most frequent target. Whatever the merits of payday lending – and there are valid arguments on both sides –it is legal in 36 states. And if payday lenders are today’s target– what category will be next and who makes that decision?

To anyone familiar with the way our thuggish government does business, this is not a surprise. When they can not get something outlawed — like payday lending or medical marijuana — they use the tools at their disposal to harass them to death. They threaten banks and financial services into not doing business with them. They pass onerous regulations. They launch inspections and raids to insure “compliance” with whatever regulations they’ve imposed. And they come down like a ton of bricks on anyone who has broken the rules to even a minor extent.

In this case, it appears that someone at the DoJ may have abused that power to go after an industry that is popular and legal. But … that’s what fucking happens when you give the government this kind of power. We shouldn’t be at all surprised that this power is being abused. We should be shocked if it isn’t abused every damned day. Think about it: through a campaign of subpoenas and legal demands, the DOJ can effectively impose massive fines on industries that have broken no laws. All that needs to happen is for someone in Washington to get a bug up their ass about an industry and they will be targeted for potentially millions in compliance costs.

Operation Choke Point needs to be ended immediately. It may turn out that this has nothing to do with Operation Choke Point. But the existence of a program like his is antithetical to the notion of rule of law. If the Obama Administration doesn’t like pay day lenders or porn sites, they can try to outlaw them through legislation (good luck with that). Allowing this kind of lawless harassment is simply wrong, no matter who is being targeted.

Update: To clarify something: the connection of this incident to Operation Choke Point is speculation at this point. It’s possible Chase is just engaging in some good old-fashioned slut shaming (in which case, fuck you, Chase). It’s also possible that the porn industry inadvertently triggered Operation Choke Point protocols since they are targeted at businesses that have high charge rejection rates and it’s likely a lot of porn users experience buyer’s remorse and try to reverse the charges (or that porn sites are a favored test bed for stolen credit cards).

Nevertheless, my criticisms stand. We have been here before. The reality that many drug dealers have lots of cash has been used to assume that anyone with lots of cash is a criminal and the cash can be taken without trial. The reality that some criminals structure bank deposits has been used to make structuring itself a crime, even when the money involved is legitimate.

The government is pressuring banks into shutting down accounts because they meet a profile of fraudulent business dealing. How is this anything more than an extension of the already abusive structuring laws?

Mercy in the Drug War

If the DOJ is to be believed, the President, who has so far granted the fewest Presidential pardons since John Adams, may grant clemency to hundreds, perhaps thousands of victims of the War on Drugs:

The Obama administration’s new clemency efforts became official today, as the Department of Justice announced the start of their revamp of the petition process that could end up commuting thousands of sentences. Deputy Attorney General James Cole promised “an extensive screening system” to identify only those who have served significant time in federal prison for their offenses, have kept their noses clean (figuratively and literally), and whose convictions did not involve violence. The DoJ will offer pro bono legal services to those who qualify to navigate the clemency petition process as well.

The criteria mentioned by Cole are published at DoJ as well:

  • They are currently serving a federal sentence in prison and, by operation of law, likely would have received a substantially lower sentence if convicted of the same offense(s) today;
  • They are non-violent, low-level offenders without significant ties to large scale criminal organizations, gangs or cartels;
  • They have served at least 10 years of their prison sentence;
  • They do not have a significant criminal history;
  • They have demonstrated good conduct in prison; and
  • They have no history of violence prior to or during their current term of imprisonment.
  • A few years ago, Congress reduced the huge discrepancy between cocaine and crack sentencing. The President appears to be mostly applying the Fair Sentencing Act to people who were swept up in the sentencing craze of the 90’s.

    This is part of a larger push, mostly at the state level, toward reducing mandatory sentencing and reducing non-violent prison populations. A lot of people are surprised that the push toward prison and sentencing reform is being largely driven by conservatives:

    In Texas, funneling money to special courts (like drug courts or prostitution courts), rehabilitation, and probation in an effort to make sure current offenders don’t reoffend, instead of continuing to make room for more prisoners, has resulted in billions saved and dramatically lower crime rates. In just the last three years, Texas has shut down three prisons.

    The conservative movement to reform prisons is not new. Republican governors in Georgia, Louisiana, Indiana, and Ohio have all made efforts in recent years to address growing incarceration rates. But it has largely remained on the periphery of the mainstream—the stuff of columns and local reports that do nothing to sway the general public.

    I, however, am not surprised. What conservative would oppose shrinking government, cutting spending and putting productive citizens to work? If someone is truly dangerous, they absolutely belong in prison. But there are thousands upon thousands of people in prison who are not dangerous. Hell, even some of those who committed violent crimes are not beyond redemption. Consider the case of Mike Anderson. Convicted of armed robbery, the State of Missouri mistakenly thought he was in prison for 13 years. The state suddenly realized their mistake and want to jail him. In the meantime, he’s become a carpenter, a business owner, a religious man and a law-abiding father of four. What’s the point in jailing him now? Does it make society safer? Prison is a means to an end; the end being a safer society. It is not an end in and of itself.

    For once, the Obama Administration is doing something that will reduce government power and result in an increase in freedom. I think that’s why the response I have seen in the conservative blogosphere has been, like Ed Morrissey above, cautiously supportive.

    One of the few dissenters is Andrew McCarthy, who claims the President is abusing his power. I find this argument dubious coming from a big-time supporter of the unitary executive who has argued that the President has the power to start wars and torture people. But I especially find it dubious because the pardon power is one of the few instances where the President has unlimited ability to check the power of the judiciary and legislative branches. Presidents have used this power extensively in the past — Ford and Carter for draft dodgers, for exmaple. The language is pretty straight-forward.

    The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

    This is constitutional and permitted. The pardon power can be abused, certainly. Bill Clinton’s final days in office come to mind. But the President isn’t abrogating a law. He is considering — on a case by case basis — the sentences of people who are serving harsher sentences than they would if they were convicted today.

    The more I look at this, the more it seems like a good idea. It’s a small step backward in the devastating War on Drugs our nation has been fighting for forty years. I don’t say this often but the President is doing the right thing.

    Wretched Hives Of … People Smoking

    One of the claims made by the anti-pot crusaders — particularly government USA’s and DEA agents prosecuting legal medical marijuana clinics — is that pot shops are a magnet for crime. These claims have just been thrown out there with little evidence to back them up. But they’ve used to justify raiding pot shops, shutting them down, threatening landlords with asset forfeiture and other fun games our federal government likes to play.

    Well, someone took a look at the, you know, facts:

    A study published by the online journal PLOS One yesterday finds that adoption of medical marijuana laws is not associated with an increase in crime and may even result in fewer assaults and homicides. Robert G. Morris and three other University of Texas at Dallas criminologists looked at trends in homicide, rape, robbery, assault, burglary, larceny, and auto theft in the 11 states that legalized marijuana for medical use between 1990 and 2006. While crime fell nationwide during this period, it fell more sharply in the medical marijuana states, even after the researchers adjusted for various other differences between states. Morris and his colleagues suggest that the substitution of marijuana for alcohol could explain this result, although they caution that the extra reduction in crime might be due to a confounding variable they did not consider.

    This is what legalization advocates have been arguing for years — that prohibition creates crime and criminals and that a legalized drug trade would drive down crime rates. In fact, this comports so closely to their claims that I’m actually reluctant to read too much into it. I want to see what other studies show — including studies of Colorado and Washington — before I draw any firm conclusions.

    Despite my caution, I will say this is an encouraging finding. I don’t expect the Drug Warriors to acknowledge it (they would, of course, trumpet a study that claimed the opposite). We also have to see what the effects of legal pot shops are on use, addiction and other health outcomes. But it is both satisfying and enraging to see more evidence piling up that our decades-long experiment in prohibition was as big a disaster as we feared.

    Unleash the AG’s

    So this happened last week:

    Attorney General Eric Holder said Monday that state attorneys general are not required to defend state laws they believe to be discriminatory. Specifically, he said those who think state bans on gay marriage are unconstitutional are not obligated to defend them. Comparing today’s gay rights fight to the civil rights movement in the 1950s and 60s, Holder said he would have challenged discriminatory laws on the books during the time of racial segregation. “If I were attorney general in Kansas in 1953, I would not have defended a Kansas statute that put in place separate-but-equal facilities,” Holder said.

    He encouraged state attorneys general to intensely scrutinize state laws like those that address equal protection, but not to oppose them based upon political or policy leanings. Holder’s comments are not customary for a federal attorney general, as they do not frequently instruct their state counterparts on how to do their jobs.

    Holder is taking a lot of fire for this this and it’s understandable. An AG’s job, after all, is to represent the state and to defend its laws in the courts. But … after thinking about it for a while, I actually agree with Holder for probably the first time in his entire tenure.

    The second part of Holder’s statement is probably the more important: an attorney general should not refuse to defend a state law simply because he disagrees with it. All lawyers are required to argue cases where they don’t like the side they are arguing. Do you think criminal defense attorneys like defending rapists or murderers? They do it because everyone deserves a defense. They do it because it’s their job. An attorney general should defend his states laws even when he doesn’t like them because that’s his job: to represent the state.

    However …

    There is one exception, and that is when the attorney believes that the law involved is unconstitutional. In that case, I would posit that not only should an AG not defend a law he believes is unconstitutional. In some cases, he should argue against it.

    I know that sounds like a recipe for chaos and I think this power should rarely be invoked. DOMA, for example, was of questionable constitutionality and I think, in that case, the Obama Administration should have stood by it. But when an Administration believes that a law is a blatant violation, should they not defend our liberty in court?

    I’ll admit that this is an outgrowth of my view of how our government is supposed to work. Far too often, the judgement of whether a law is constitutional is left the Courts. But it is the sworn obligation of all branches to defend our liberty. The Courts should bounce bad laws, yes. But they don’t always, as the Kelo abomination demonstrated. In those cases, we need the other branches to defend our liberty. We need them to stick up for us when the Courts won’t.

    Congress and State Legislatures should not pass laws that they believe are unconstitutional. The President and the Governors should veto unconstitutional laws and refuse to use powers they believe are unconstitutional, even if the courts approve them (warrantless wiretapping, for example). And even if the AG does enforce bad laws, for the sake of order, I have no problem with him arguing that the law is unconstitutional (there will never be a dearth of attorneys willing to argue in favor of the government).

    I hate to play the game of If I Were President, but I think it’s relevant here. Just last week, I wrote about the vile unconscionable thing that is asset forfeiture. Should not a President order his Justice Department to end asset forfeiture? It is a choice, not a requirement, after all. And should he not have an AG go into Court and argue that this violates the people’s rights? Why must the engine of government justice always be turned against the citizen and against his liberty?

    It’s a little shakier when you get down to the state level, where you could argue that the state AG’s should defend a law even as the federal lawyers argue against it. Or you could argue they could resign on principle. There is a danger of opening a can of worms and politicizing the court process even further. I see that.

    But I don’t think this issue is as clear-cut as a lot of people want to make it. I’m not sure gay marriage laws pass the threshold, but I don’t think it’s ridiculous to argue that a state can realize it is in the wrong and refuse to defend an unconstitutional law.

    The Pledge

    As you know, Obama invoked his imperial executive powers to delay the employer mandate for businesses with 50-99 employees. One aspect of it, however, has not caught much attention. In order to qualify for the exemption, businesses must certify, under penalty of perjury, that they did not cut down on employment to get under the 100 employee cap:

    This week, the Obama administration finalized a regulation that delays enforcement of the employer mandate until 2015 for companies with 50 to 99 workers. Contained in the regulation was the clearest admission to date that Obamacare, and its employer mandate in particular, will indeed have a negative effect on jobs: To qualify for the delay, employers must certify that they haven’t reduced the number of workers in their company, or the total hours of service of its employees.

    Put another way, if employers are going to take advantage of the one-year delay in enforcement of the employer mandate, they have to attest (under penalty of perjury) that they aren’t cutting jobs or reducing hours because of Obamacare. By pointing this out as a possibility — or an outcome to be avoided — the administration is acknowledging what it long denied: The law creates incentives for employers to cut hours and jobs.

    Chen goes on to point out that this attestation of faith is purely political. Obama wants to be able to say that no business is cutting employees or hours to comply with Obamacare — and he has their own sworn statements to prove it!

    McCarthy:

    Think about how lunatic this is. There is nothing even faintly illegal about businesses’ – indeed, all economic actors’ – making financial decisions based on tax consequences. (And remember, notwithstanding Obama’s misrepresentations to the contrary, Obamacare mandates are taxes – as Obama’s Justice Department argued and as Chief Justice Roberts & Co. concluded.) The tax consequences of Obamacare are profound – that is precisely the reason that Obama is “waiving” them. No responsible officers in a corporation of relevant size would fail to take them into account in making the decision to staff at over or under 100 employees; in determining whether some full-time employees should be terminated or shifted to part-time; or in making any number of the decisions Obamacare’s mind-numbing complexity requires.

    The officers’ responsibility is to the owners of the company, the shareholders. The business exists to create value, not to provide employment – employing workers is a function of the value added to the enterprise, not the need to create a more favorable election environment for the statist political party. Corporate officers who overlooked material tax consequences would be unfit to be corporate officers.

    What is illegal and irrational is not a company’s commonsense deliberation over its costs, it is Obama’s edict. And look what attends this one: criminal prosecution if Obama’s Justice Department decides the business has falsely certified that its staffing decision was not motivated by Obamacare.

    Think about that for a second. The waiver is illegal. It flouts the language of the Obamacare statute, under which the employer mandate is required already to have been implemented by now. There is nothing in the law that empowers Obama to waive the mandate, much less to attach lawless conditions to such a lawless waiver. A business that seeks the waiver and fails to pay the mandated tax (in lieu of providing the required coverage) is in violation of federal statutory law, regardless of its compliance with Obama’s outlaw edict. The payments required by the statute, after all, are owed to the public, not to Obama – he’s got no authority to deprive the government of these funds just because it would harm Democrats to collect them.

    I think the later point is very very important. Remember what I wrote a couple of weeks ago about Obama saying he won’t prosecute people who sell legal marijuana in Colorado and Washington? Obama is creating a system where people can be violate a stupid law but he will not prosecute them. For now. However, this waiver can be removed at any time at his pleasure. He invites companies to break the Obamacare law and then puts them at his mercy. Holder recently said banks could process funds for legal marijuana business but the banks are hesitant because they are not that stupid. They know the Feds could turn on them at any moment and seize all of their assets, claiming they are laundering drug money (and indeed, they would be, under federal law).

    I realize that Congress is in a do-nothing mode. Having passed a budget and raised the debt ceiling, there are now rumbling that they are basically done with legislation for the year (note: they will still be paid as if they were legislating). Tax reform, immigration reform, Obamacare overhaul … all of these look like they will never happen. We have an absentee government.

    Normally, that might not be such a bad thing. But we have a number of critical issues that need to be addressed. If Obama says he will waive Obamacare requirements for smaller businesses, Congress should pass a law (and remove the oath part). If Obama says we shouldn’t prosecute legal pot business, Congress should pass that into law. Without the protection of Congressional legislation codifying these things, everyone is at the President’s mercy.

    Does anyone doubt there will be political games and favoritism in who is and isn’t prosecuted for violating the 100-employee rule? Does anyone doubt that political games and favoritism will play into which legal pot shops are prosecuted? Executive rule is arbitrary rule. It is no longer rule of law, it is the rule of man … a very specific man who has given little reason to believe he can be entrusted with that kind of discretionary power.

    As I have said many times, this isn’t a partisan issue. Liberals shouldn’t want that kind of authority given to President Rubio in 2016. Congressional Democrats shouldn’t want their power usurped. Legal marijuana supporters shouldn’t want pot shops to be operating under the mercy of the President. Forget the letter next to the guy’s name. This is wrong and this is dangerous. It’s time to put a stop to it.

    Meanwhile, businesses that qualify for the Obamacare waiver should refuse to take advantage of it. This will hurt and they will have to fire employees. But it’s better than swearing an oath that can’t possibly be true, violating a law passed by Congress and putting themselves at the mercy of the President.