Surprise Surprise

My readers will never accuse me of not being responsive - one devoted subject wrote:

"When are you going to comment on the 11th striking down Obamacare?"

Now my friend:

Today, the Eleventh struck down Obamacare a law that was intended to make health care in this country more affordable, sustainable and better. 

The opinion, co-authored by Dubina and Hull. 

Of course, some naysayers out there took exception to Dubina hearing the case because "Dubina’s daughter, Rep. Martha Roby (R-Ala.), is one of dozens of freshman Republicans who campaigned on repealing the health care law."  But I am not so cynical. 

I actually do have some concerns about the interpretation of the commerce clause that is necessary to sustain the law - unfortunately, my concern is dangling by a thin hair after having been nearly beaten to death by criminal statutes that are based upon commerce clause jurisdiction. 

I often wondered if there were any limits to the "CLAUSE", and now know that yes, in fact, if you want to use it to do something daring and positive, the courts may not let you - Of course, it does not help that I think the New Eleventh might come down differently on Heart of Atlanta Motel Inc., but that is another story altogether.

So, congrats to the Conservatives in the South - your Eleventh handed you a nice win today.  As one prominent defense lawyer is often times quoted - take the rest of the day off "now figure out how to pay for your policies" and enjoy the weekend.

They're Back!

Thank goodness that once again, gladiators are fighting it out in Rome.  Only this time, it seems that Caesar is not too happy about it.

I can't wait till they bring back the animal fights - David, I think you should take this one on and make sure we can all watch the Elephant vs. Crocodile fight - I have allays wondered about that match-up.

It seems that Bert and Ernie will not in fact marry!

"The makers of Sesame Street say characters Bert and Ernie will not marry in a same-sex ceremony despite an online petition calling for the union.

Campaigners say the best friends should marry as a way to encourage tolerance of gay people.

Nearly 7,000 have signed the petition, with more than 3,000 joining a Bert and Ernie Get Married Facebook page."

Okay - I am perhaps a little left of liberal, but doesn't it strike anybody else as odd that people would want these puppets to marry?  It did the creators too:

"A statement from the show's makers said: 'They remain puppets and do not have a sexual orientation.'

The confirmed bachelors have lived together for 40 years and sleep in the same bedroom, albeit in single beds.

'Bert and Ernie are best friends,' the statement from Sesame Workshop added. 'They were created to teach preschoolers that people can be good friends with those who are very different from themselves.'"

I think that the gay community might be getting hijacked by some extremists - and the media is loving it. Think about it - there are a heck of allot more than 7,000 gay people on Facebook; yet, an article is appearing in the BBC (and I am writing about it), that talks about the aims of this small segment of a group. It is unfair to say that all gay people want Bert and Ernie to marry, but that is the suggestion in the article. It is the same thing that Fox News does with Muslims and terrorists.

When the cat's away...

Poor David,

He turns over his storied blog to a friend, former defense attorney/star and law professor extraordinaire and what happens?  The prof. blogs about arbitration clauses while the Eleventh Circuit publishes a case that is as old as the "internets," as proved by a scene from War Games - student accessing school grading system to change grades.

Sadly, these students - FAMU undergrads - ended up getting caught and going to prison.  Of course, it may not have just been the grade changes that got them there:

"Using the surreptitiously obtained usernames and passwords, the conspirators accessed FAMU’s grading system, changed grades, added credits for courses which had been failed or not taken, and changed the residencies of several non-resident students to qualify them for in-state tuition. The changes were made via the Internet from the conspirators’ home computers, campus computers at FAMU and Florida State University, and from several wireless laptops."

Perhaps a bit over the line, but comeon...is this case not ready made for comment by Bascuas?  Rick, you can do a hell of a good job with United States v. Barrington, now hit one out of the park!

In other news - Europe is considering a ban on short selling.  What the heck are Republican's gonna do if this comes to America?  They won't be able to use best efforts to cause the financial markets to crash so that Obama looks bad, they profit by betting against the market and they pay almost zero in taxes!  End times.

Congratulations to Bill Altfield!

Bill Altfield was just appointed to the State bench - it is well deserved, he will be a great judge.

But that doesn't mean that Rick Scott has won me over yet:

Bad week to be an Asshole

Poor Rummy - can't get no love.  Last week, a district judge ruled that he can be held liable for ordering the tourture of an American citizen.  Now, the Seventh Circuit came to the same conclusion in a different matter, involving the torture of two American citizens who were working as contractors:

"US military personnel detained them, confiscated their belongings, handcuffed and blindfolded them and took them to a military base in Baghdad, where they were fingerprinted, strip-searched and locked in a cage.

They were then taken to Camp Cropper near Baghdad International Airport, where they "experienced a nightmarish scene in which they were detained incommunicado, in solitary confinement, and subjected to physical and psychological torture for the duration of their imprisonment - Vance for three months and Ertel for six weeks", the court wrote, reiterating the men's allegations.

The men claim they were deprived of sleep, food and water, held in extremely cold cells without warm clothing, and threatened with beatings.

They were ultimately released at the Baghdad airport and were never charged or designated security risks."

So what is Rummy's defense?

"[T]he decision to allow the suit 'saps the effectiveness of the military, puts American soldiers at risk, and shackles federal officials who have a constitutional duty to protect America.'


'Having judges second-guess the decisions made by the armed forces halfway around the world is no way to wage a war,' David Rivkin said in a statement."

Here is the article.

Sadly, Obama is fighting the lawsuit.  So who is this Rivkin guy that Obama is siding with on legal theory?  A Class-A Asshole.   Great company you are keeping Mr. President.

Good on ya!

Judge Allows Torture Suit Against Rumsfeld to Go Forward

"A federal judge has agreed to allow an Army veteran who says he was tortured during a nine-month imprisonment in Iraq to sue former Defense Secretary Donald H. Rumsfeld."

The guy was beaten, subjected to enhanced interrogation techniques torture, and denied counsel. Of course Obama raised the state secret privilege to try and defeat the suit.

I am sure it will work its way up; if this can be done to an American citizen who will then have no recourse...what is the point of having constitutional protections in the first place?

Rick Scott doesn't like clean water.

"Appellants’ alleged substantive injury—the forthcoming EPA rule mandating numeric nutrient limits—is fairly traceable from the requirements imposed by the consent decree."

That's right, the State of Florida (through one of its "governmental entities") appealed a consent decree between the EPA and some environmentalists which puts rules in place as to how dirty our water can be.  Luckily for us all - the appellants lost.

Gotta love that guy.

Interesting case out of the Fourth:

Gov. indicts defendant, then before he is arrested, sends informant to him to record a conversation, which was very damning.  On appeal, government leads the Fourth Circuit into error by taking the position that the right to counsel did not attach because the defendant was not arrested.  Appeal to Sup. Ct., and solicitor general concedes error and admits that as soon as a person is indicted right to counsel attaches.  Fourth then refuses to address Sixth Amendment claim, and instead remands to district court to determine whether or not the recorded statement violates the Fifth Amendment because of the manner in which it was conducted.

If I had to bet, I would say the Fourth is not looking to establish a bight-line Massiah-type rule in this situation where the defendant had not yet been arrested.