Tag Archives: Supreme Court of the United States

It’s called a Strategy of Rhetoric and Politics—Talk to Those who Oppose you!

Over the past week, Rodney Martin of the ANA has taken me heavily to task for arranging for Dr. Tomislav Sunic to speak at the Beverly Hills JEM Center as the guest of Rabbi Hertzel Illulian, in partial response to Rabbi Illulian’s invitation to ME to promote the JEM Center and to initiate a dialogue in answer to the age old question: “why to so many of your people (the gentiles) hate the Jews?”  My First Answer was that Jews Control Hollywood, and Hollywood is destroying America—but the simple truth is that not ALL Jews support the despicably degenerate and immoral values embodied in (most) of Hollywood, in in the person of Rabbi Hertzel Illulian, I have met a Jewish Rabbi who sounds more like a strict old Southern Baptist Minister in his preaching of morality than any member of the Academy or any other Hollywood “Establishment” Grouping.

  • Charles Edward Lincoln Rodney: You ask, “Why do we [AmRen, Sunic, and I suppose, I] so called WN Intellectuals seek dialog with Jews?” Because the first step to change is to confront them with an embarrassing question. I know we need to have a little private chat about this, but let me explain how I in particular came to work with Rabbi Illulian.

    As you may know, I am a “former attorney”, by which I mean I was ordered disbarred first in the United States District Court for the Western District of Texas, after filing a series of Seven Civil Rights Suits on behalf of WHITES ONLY asserting the same claims for civil rights as are often asserted on behalf of African-Americans and Mexicans (and Vietnamese, Filipinos, etc.) assuming that the law really did afford equal protection to white people. When they (the Federal Judges in Texas) saw I had NO intention of backing down after that initial disbarment in one Court, they indicted me on some idiotic trumped up charges which led to my resignation from the State Bar of Texas “under threat of disbarment” and the imposition of reciprocal discipline in California and Florida. Yes, I was literally licensed, “Coast-to-Coast” at one time and one of my Civil Rights cases on behalf of upper middle class white people made it to the United States Supreme Court (Atwater v. Lago Vista, 2011).

    So, a mere ten years after I graduated from the University of Chicago Law School, by 2002, I found myself disbarred coast-to-coast, but I still wouldn’t give up. I continued fighting because I had absolutely nothing left to lose. I fought in Family Court against the destruction of the Constitution and Family in our Homes. I fought foreclosures and evictions and the destruction of the right of the people to be secure in their persons, homes, papers, and private property.

    I became one of the most hated people (to the Courts at least, and Texas Office of the Attorney General which exists in large part to defend the Courts—no matter how monstrous a conflict of interest that would seem to be) in my home state of Texas, which at one time was the freest state in the Union. In January or 2006, after coming close to closing down the family Courts of Williamson County, Texas, at the insistence of already thenTexas Attorney General Greg Abbott (soon to be elected Governor by fiat…to succeed Rick Perry in the Throne of the Bush Family), I was permanently banned from litigating in the Courts of the State of Texas—even as a pro se litigant, even though the Judge Specifically ruled that I was NOT and could NOT be found to be a Vexatious litigant. Rather, he ruled that I posed too great a threat to the stability and security of the Judicial System of the State of Texas.

  • Charles Edward Lincoln And as if all of that were not compliment enough, on March 25 of 2008, Judge Walter S. Smith, Chief Judge of the Western District Texas, entered a permanent injunction against my litigating in any or all of the Federal Courts of Texas, even Bankruptcy Courts. So by that date, I was deprived of all my civil rights in the State of Texas, and I left the State Permanently. Judge Smith wrote that the injunction was necessary to stop the “crusade” I had “spearheaded among dozens of pro se litigants ..to have the Texas Family Code and Courts declared unconstitutional.”

    BUT STILL I DID NOT GIVE UP MY FIGHT FOR THE CONSTITUTION. In May of 2008, I began litigating against the Constitutionality of the Family Court System in Florida, and that led to another Petition for Certiorari to the U.S. Supreme Court in 2011.

    In 2010, I was living in Los Angeles and met a wonderful young lady by the name of Julia Gelb, born in Godless Atheistic Russia at the end of the Soviet era in what is now the Republic of Belarus.  Julia was going through a terrible divorce in Orange County. She was Jewish, and what pained her most about her divorce proceedings was that her (soon-to-be) ex-husband was not a religious but a secular Jew who had no intention of raising their children, “in the faith.”

  • Charles Edward Lincoln I saw in Julia’s situation an amazing opportunity to develop jurisprudence and a legal theory that would support AN AFFIRMATIVE RIGHT TO SEGREGATION and “separate development.” I introduced the Orange County Courts to the writings of Dr. Kevin MacDonald and sought to explain that the Jews depended for their preservation of their identity on THE RIGHT TO SEPARATE EDUCATION and SEPARATE CULTURAL IDEOLOGY AND EVOLUTION—in short, that religious Jews Demand the right to remain Segregated and Separate.
  • Charles Edward Lincoln Julia introduced me to the father of her best friend Bracha Illulian, who happened to be Rabbi Hertzel Illulian. Rabbi Illulian was deeply impressed by my work for Julia. The truth is, we needed William D. Johnson or some lawyer of equal standing and sympathetic disposition. But it has never been possible to arrange this for a variety of reasons.

    Still, it became fixed in my mind that the destiny of the Jews as a “People who shall dwell alone, and not be numbered among the nations of the world” was an excellent model for segregation of all peoples.

    I see segregation as a positive good for all people. Segregation is security and a necessary prophylactic against the evils of globalization, which include the attempted abolition of natural evolution, be it cultural or physical.

    Since each of the Bible, History, and Kevin MacDonald’s sociobiology and evolutionary psychology have taught us that the Jews have perfected the ways and means of segregation, and that is why we should learn from them, and praise them for their successful segregation, and sue to establish the same rights for ourselves.

    It may not seem like it, but that is my SHORT answer to your question. Ask questions as you see appropriate…

50 Years of Executive Orders 1962-2012—the IMPERIAL PRESIDENCY’s usurpation of Legislative power began long before Obama

The background to Executive Order 13603 apparently stretches back a full 60 years to President Harry S. Truman’s attempt to take over the U.S. Steel Industry—back then Presidents were not allowed to seize private property without due process of law, and there was no Secretary of Homeland Security at all….

Well, Jerry Hodge of Claremont, California set me right and I have to temper what I wrote earlier: many of the executive orders which seem most oppressive are actually almost as old as I am, which is to say a suitable subject for archaeological research….  Turns out that the list of Legislative Decrees promulgated as Executive Orders that I published just a few hours ago does not belong exclusively to OBAMA at all, the oldest listed goes back to John F. Kennedy…

This brings up a very important point—just ten years earlier than the earliest executive order listed here, in Youngstown Sheet & Tube v. Sawyer, decided June 2, 1952: 06-02-1952 Youngstown Sheet & Tube Co v Sawyer 343 US 579 72 SCt 363 SCOTUS May-June 1952, see also 05-03-1952 Petition for Writ of Certiorari in Youngstown Sheet & Tube Company by John W Davis et al

Anyhow, in 1952, the Supreme Court say that Legislation was still the province of Congress….what happened?  Well, first Earl Warren and then Warren Burger spent the next twenty years bolstering the power of the Executive Branch AND the Judicial Branch OVER the legislative, for one thing…

More from “The Mad Jewess” (rapidly becoming one of my favorite fellow, or I suppose I should say “sister” bloggers in the world):

Obama Has Signed Dictatorial & Tyrannical Executive Orders. He MUST Be Stopped.

De : Jerry Hodge
À : ‘Charles Lincoln’
Envoyé le : Dimanche 30 septembre 2012 14h48
Objet : RE: The Dictatorship of the Proletariat, by Barack Hussein Obama

Weren’t these orders issued by Kennedy or other Presidents?

Jerry:
How’d you know that?  By the NUMBER?  I’m very impressed and will correct my own post shortly—-thank you very much!  How have you been recently?  It’s STILL government by decree or dictatorship, no matter WHO entered the orders, but, Thank you for setting the record straight….  Anyhow—I appreciate the feedback…. And am always happy to acknowledge I was wrong and leaped to a conclusion without looking first….
Exec. Order No. 10990, 27 FR 1065
Executive Order 10990
REESTABLISHING THE FEDERAL SAFETY COUNCIL
February 2, 1962
WHEREAS section 33(c) of the Federal Employees’ Compensation Act, as amended (5 U.S.C. 784), declared it to be the purpose of the Congress to reduce the number of accidents and injuries among Government officers and employees, encourage safe practices, eliminate work hazards and health risks, and reduce compensable injuries; and
WHEREAS section 35 of that Act, as amended (5 U.S.C. 785), further disclosed the interest of the Congress in the promotion of safety in Federal agencies and establishments; and
WHEREAS the Federal Employees’ Compensation Act, as amended and as modified by Reorganization Plan No. 19 of 1950 (hereinafter referred to as the Act), directs the heads of Government departments and agencies to develop, support, and foster organized safety promotion, and to keep such records of injuries and accidents to persons covered by the Act, and to make such statistical and other reports upon such forms as the Secretary of Labor may prescribe; and
WHEREAS the preponderance of accidents involving employees in the Federal service occur in field operations, the heads of executive departments and agencies, and through them, their supervisory staffs, including regional and field staffs, must exert leadership in the establishment of a sound accident prevention program at both the national and regional level; and
WHEREAS representatives of Federal employees should share a similar concern for the establishment of such programs; and
WHEREAS the President is authorized by the Act to establish by Executive order a safety council composed of representatives of Government departments and agencies to serve as an advisory body to the Secretary of Labor in furtherance of the safety program carried out by the Secretary pursuant to section 33 of the Act and to undertake such other measures as he deems proper to prevent injuries and accidents to persons covered by the Act:
NOW, THEREFORE, by virtue of the authority vested in me by section 33(c) of the Act and as President of the United States, it is hereby ordered as follows:
SECTION 1. Establishment of Council. There is hereby established in the Department of Labor the Federal Safety Council, hereinafter referred to as the Council. The Council shall be composed of a Chairman, to be designated by the Secretary of Labor, and one qualified representative of each of the several executive departments and agencies and of the municipal government of the District of Columbia (hereinafter referred to as members). The heads of the departments and agencies and the Board of Commissioners of the District of Columbia shall designate the members representing them, respectively, and may also designate suitable alternate members. The Secretary of Labor may, as he deems appropriate, appoint representatives of national or international unions, having Federal employees as members, to serve as consultants to the various committees established by the Council. The Chairman, members, alternate members, and consultants shall serve, as such, without compensation from the United States.
SEC. 2. Purpose and functions of Council. The Council shall serve in an advisory capacity to the Secretary of Labor in matters relating to the safety of civilian employees of the Federal government and the municipal government of the District of Columbia and the furtherance of the safety program carried out by the Secretary pursuant to section 33 of the Act. It shall advise the Secretary of Labor with respect to the development and maintenance of adequate and effective safety organizations and programs in the several departments and agencies of the Federal government and the municipal government of the District of Columbia and with respect to criteria, standards, and procedures designed to eliminate work hazards and health risks and to prevent injuries and accidents in Federal employment.
SEC. 3. Council affiliates, committees, and officers. The Council shall include as an integral part of its organizational structure and operations such affiliates, hereafter established by the Council or now existing, in such manner and to such extent as it deems necessary properly and efficiently to perform its functions. The Council shall establish such committees, and may choose such officers (other than its chairman), as it finds necessary for carrying out its functions.
SEC. 4. Regulations. The Secretary of Labor shall prescribe appropriate regulations governing the activities and functions of the Council.
SEC. 5. Administrative and budgetary arrangements. The Secretary of Labor shall make available necessary office space and furnish the Council necessary equipment, supplies, and staff services.
SEC. 6. Continuity. The Federal Safety Council established by this order shall be deemed to constitute a continuation of the Federal Safety Council heretofore existing under the provisions of Executive Order No. 10194 of December 19, 1950.
SEC. 7. RevocationExecutive Order No. 10194 of December 19, 1950, is hereby superseded.
JOHN F. KENNEDY

THE WHITE HOUSE,February 2, 1962.

Obama Has Signed Dictatorial & Tyrannical Executive Orders. He MUST Be Stopped

30SundaySep 2012

I received this list in my email last night.  What is it going to take to stop the madness?  This is anti-American.  A President is not supposed to rule by executive orders.  He is supposed to protect us from enemies; foreign and domestic.  But, he is the enemy that is foreign and also a domestic enemy.  

We never hear about this massive abuse of power on Faux News, MSNBC, CNN, ABC, CBS, etc.  

Why were executive orders that GWB signed not ok and this is OK? Where are the ‘classical’ Libertarians?  Seems they are missing in action. Ditto fake Conservatives who think that God is ‘blessing’ America. 

LOOK at the list, dammit.  STOP arguing with me and look at your freedoms diminishing, daily.  A poster that used to come here saw ‘nothing nefarious’ with this abuse of power, below.. She had to be insane.  And worse:  she was a Jew. Imagine a psycho-moonbat Jew being FOR executive orders…

LIST:

  • Executive Order 10990 allows the Government to take over all modes of transportation and control of highways and seaports.
  • Executive Order 10995 allows the government to seize and control the communication media.
  • Executive Order 10997 allows the government to take over all electrical power, gas, petroleum, fuels, and minerals.
  • Executive Order 11000 allows the government to mobilize civilians into work brigades under government supervision.
  • Executive Order 11001 allows the government to take over all health education and welfare functions.
  • Executive Order 11002 designates the Postmaster General to operate a national registration of all persons.
  • Executive Order 11003 allows the government to take over all airports and aircraft, including commercial aircraft.
  • Executive Order 11004 allows the Housing and Finance Authority to relocate and establish new locations for populations.
  • Executive Order 11005 allows the government to take over railroads, inland waterways, and public storage facilities.
  • Executive Order 11049 assigns emergency preparedness function to federal departments and agencies, consolidating 21 operative Executive Orders issues over a fifteen-year period.
  • Executive Order 11051 specifies the responsibility of the Office of Emergency Planning and gives authorization to put all Executive Orders into effect in times of increased international tensions and economic or financial crisis.
  • Executive Order 11310 grants authority to the Department of Justice to enforce the plans set out in Executive Orders, to institute Industrial support, to establish judicial and legislative liaison, to control all aliens, to operate penal and correctional institutions, and to advise and assist the President.
  • Executive Order 11921 allows the Federal Emergency Preparedness Agency to develop plans to establish control over the mechanisms of production and distribution of energy sources, wages, salaries, credit, and the flow of money in U.S. financial institutions in any undefined national emergency. It also provides that when the president declares a state of emergency, Congress cannot review the action for six months.

PLEASE STOP THE DICTATOR.

Please Feel Free To LINK

The Power of Judges to Make Subjective Evaluations is Corrupt and Evil! (We cannot repeat it Sufficiently—Judges should NOT be the Gatekeepers of the Courthouses—All of the People’s Complaints should be allowed a fair trial, and a fair hanging if necessary)

I am just not a great fan of Chief Justice John Roberts at all—there are certainly more than a few comparisons to be made between Roberts’ and Warren’s elitism… the certainty that the Judges of the Land know more and can make wiser choices than “ordinary people.”

Chief Justice Roberts has in seven years done more to close the doors to the Federal Courts than all the Chief Justices of the Supreme Court had ever done to open those doors before.   The Federal Courts are effectively “off limits” now as arenae for the genuinely, freely adversarial or dialectic investigation and discovery of truth.  And where the Federal Courts go, the State Courts follow like sheep close after….

It may sound like something “only a lawyer” would care about but Warren and Roberts careers have focused on making the entire civil practice in Federal Court turn on ONE RULE, namely, Rule 12(b)(6) “the Motion to Dismiss for Failure to State a Claim upon which Relief can be Granted.”  This one single rule is now “the gatekeeper” to the Federal Courthouse doors, and the “keymaster” is the idiosyncratic (or possibly corrupt) Federal Judge who is rewarded by the “judicial statistics” system for keeping his docket numbers “low” (i.e. Federal Judges are rewarded for their ability to minimize the number of cases and motions pending at any one time—12(b)(6) works WONDERS for cleaning the docket for 99% of the cases that come before Federal District Courts.

Again, while it may seem like a rather obscure point of law to call it a national crisis, the Motion to Dismiss has basically become “the whole game” for all but the wealthiest and most powerful litigants in Federal Court—and the reasons for dismissal are now intentionally unclear—with vast subjective discretion given into the hands of unelected (and logically, morally, and politically quite unelectable—because they are so far removed from “the ordinary citizen”) elite law-review type and model judges.

Earl Warren and John Roberts, in their construction and application of Rule 12(b)(6), align on the progressive empowerment of the subjective, almost unreviewable, control given to Judges over which complaints will be allowed or not.  Under Earl Warren, the Supreme Court gave the Judges the power to decide whether “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”  From the standpoint of the Seventh Amendment, of course, this holding itself was an OUTRAGE.  Under the Common Law and the Constitution, ONLY juries should have any right to decide what facts are “proven” or not and whether a party is entitled to relief.  Still, in characteristic fashion, the Warren Court was applauded for setting such a high standard for dismissal of claims.  But the precedent was set: JUDGES not Juries, make the decision about whether a complaint alleges “sufficient” facts to warrant the trial which the Seventh Amendment guarantees.  That language “beyond reasonable doubt” was first enunciated in Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, decided on November 18 in 1957.  11-18-1957 Conley v Gibson – 355 US 41 78 SCt 99 (1957).  

Exactly Fifty years later, John Roberts, in the first major decision concerning the rules of civil procedure under his “Chiefship” found that an anti-trust complaint drafted by one of the top Plaintiffs’ Anti-Trust firms in New York City alleged insufficient facts to be “plausible.”  That was “Bell Atlantic v. Twombly, 550 U.S. 544; 127 S. Ct. 1955; 167 L. Ed. 2d 929 (May 21, 2007)  05-21-2007 – Bell Atlantic Corp v Twombly – 550 US 544 (2007).  

I think that the original sin was to allow JUDGES to prejudicially decide Motions to Dismiss for Failure to State a Claim.

For this reason, Conley v Gibson, in its time, functioned in a manner just as subversive to the Constitution as Bell Atlantic v. Twombly.   In 1957, the Supreme Court approved a subjective test, albeit a very LIBERAL test (difficult to flunk, like High School these days is for most student), to be applied ONLY by Judges before any fact-finding trial or even discovery—to act as gatekeepers allowing only “favored” cases to go forward.The Seventh Amendment to the Constitution guarantees the final right to try ALL facts to a jury, which findings are hardly subject to judicial review.  Twombly, by contrast, is rather like Harvard College used to be before 1940—anyone can enroll and file papers but its almost impossible to pass through the first year.  Twombly gives Federal judges unfettered discretion to dismiss cases based on their subjective evaluation of “plausibility” but Article III judges were never intended (by the Constitution) to have the power to exclude ANY cases from consideration.

Rule 12(b)(6) of the Federal Rules of Civil Procedure Permits Federal Judges to PREJUDICIALLY evaluate the factual allegations of complaints and prevent cases from ever being HEARD by juries as is GUARANTEED under the Seventh Amendment.

After Twombly, Judges now are empowered to decide whether the facts are (1) sufficiently alleged, (2) whether they make a “plausible” story.  This means that when you allege conspiracy, for example, the Judge basically can deny you the right to investigate the facts so that you will NEVER be able to put your complaint to trial before a jury.  

So, if a group of homeowners, for example, were to allege that the State Courts, and County Sheriffs’ Departments and local Constabulary of any given state systematically discriminated against mortgagors in favor of mortgagees, no matter WHAT FACTS WERE PRESENTED you can be sure that the U.S. District Court would find “insufficient” factual allegations “incomprehensibly” woven together as an “outlandish and implausible conspiracy theory.”  

This has become the (de facto) mantra of the the U.S. District Courts today: no claim or complaint that defies the ruling government’s purposes, or the ruling BANKS’ purposes, will ever be allowed to go forward in court.  

HEAR YE, HEAR YE, All Patriotic Americans: The Federal Courts are corrupt, bought and paid for by the Banks.  The only way to take them back is to restore power to the juries selected from a population pool of literate, voting, responsible Americans—and abolition of the power of judges to refuse to “hear” cases without allowing fact-finding (aka “discovery”) and trial must be declared unconstitutional.
One ray of hope exists and it is but little explored: the United States Court of Appeals for the Ninth Circuit (locus of my first job in the law) has in essence formally accused C.J. Roberts and his brother and sister justices of “outcome determinative” corruption in two decisions last year entitled “Starr v. Baca“, saying that the decisions of the Supreme Court could only be understood as catering to certain specific governmentally favored interest groups or interests, including the interest in suppressing constitutional rights…. 07-25-2012 – Starr v Baca – 652 F3d 1202 (9th Circuit 2011) 
In Starr v. Baca, the Ninth Circuit Takes on the Supreme Court in Bell Atlantic v. Twombly and rationality decency SORT OF win…. but Judges STILL have unbridled power and ius vita necisque over the people’s complaints….The Ninth Circuit also engages in an interesting political exercise of “motive” analysis, and finds the Supreme Court GUILTY of outcome determinative prejudice and bias in favor of certain policies and against certain groups…. That Starr v. Baca has some staying power and was not merely a flash in the West Coast Judicial Pan was recently confirmed in another civil rights case out of Nevada: 05-04-2012 Henry A v Willden 678 F3d 991 (9th Circuit 2012)

A New Red Dawn Over America—Obamacare & the Police Power in Arizona are Upheld—the Constitution again ruled DOA at the Supreme Court (full text of the Supreme Court’s Worst Two Decisions of the Week attached)

Chief Justice John Roberts is rapidly becoming my least favorite U.S. Supreme Court Justice in history.  First, in 2007, the debut innovation of “the Roberts Court” was Bell Atlantic v. Twombly, then a followup kick in the face of freedom under the name of Ashcroft v. Iqbal and now this week (on Monday, June 25, 2012) Arizona v. United States (Arizona v US) and, today Thursday, June 28, 2012, yet another day that will live in infamy: NATIONAL FEDERATION OF INDEPENDENT BUSINESS et al. v. KAREN SEBELIUS, SECRETARY OF HEALTH & HUMAN SERVICES (NATIONAL FEDERATION OF INDEPENDENT BUSINESS et al v SEBELIUS SECRETARY OF HEALTH).

It’s been a really bad week for the Constitution and for the American people, and a very good day for  Obama’s flourishing Dictatorship of the Proletariat.  Oh yes, and what a nice present for Hillary Clinton as she celebrates lasting longer as U.S. Secretary of State than any other of the 96 individuals to hold that office—and we were all sure she was just a joke back in the early 1990s when she was pushing a National Health Care System which looked an awful lot like what we’ve got now with Obamacare.

First with regard to Arizona v. US: The expansion of the American Police State seems never-ending, as the late great Strom Thurmond’s States-Rights Democratic Party Platform very accurately predicted in 1948.   The great triumph of the Civil Rights Movement in the United States over the past 64 years is quite simply this: all oppressive acts of government, so long as they are applied equally to White people as well as Blacks, Hispanics, Asians, and all others without Racial, and only with Economic and Political, Prejudice, will be upheld.  But try asserting any constitutional right other than your right to be on an equal footing with all other slaves, and man YOU ARE DEAD MEAT!!!!  States Rights got a minor boost last year when an individual right to sue under the Tenth Amendment was recognized, but this year the 162 year trend towards the complete suppression of State Sovereignty marches forward unabated….

The main issue regarding Arizona’s immigration statutes was whether the individual states of the Union have any right to make more restrictive laws regarding residence and citizenship than the United States as a whole.  Under the expressly anti-States’ Rights 14th Amendment, the Supreme Court said NO.  But, if the Arizona police want to go around harassing people on the highways, they are free to do so, so long as they are willing to say they suspect that every blonde-haired & blue-eyed caucasian must have recently entered illegally from Sweden or Norway perhaps….  The Supreme Court, these days, never seems to miss an opportunity to enhance the power of the police to oppress the population at large.

With regard to the “Obamacare” case, I can only say I’m NOT even as surprised by this result as I was not by the result in the Arizona immigration opinion.  Ever since Franklin D. Roosevelt gave up his plan to “pack” the Supreme Court, there is no infringement on the economic liberty and personal choices of the American people which the Supreme Court finds too trivial to be worthy of Federal Enforcement.  The only comment-worthy deviation from predictions was that Chief Justice John Roberts in this case came up with the novel notion that the U.S. government can tax anything and anyone it wants to for any reason, including non-compliance with a mandatory insurance purchase requirement, and that this punitive tax or purchase choice makes it all “OK.”

Of all the commentary and punditry that came out on Thursday after the decision, two of the most “spot on” that I saw were first) the article describing John Roberts’ “Liberal Apotheosis”:

After Thursday’s Obamacare ruling, Supreme Court Justice John Roberts became a minor deity to some liberals for voting to save Obamacare. But just days before Roberts’ apotheosis, liberals lamented that the “conservative” Supreme Court was taking America down a dangerous path.  (http://news.yahoo.com/obamacare-ruling-liberal-apotheosis-john-roberts-035207618.html)

The “Liberal Apotheosis” of John Roberts?  “Apotheosis” of course, means transformation into a god—and what did the pagan gods of Olympia or Pharaonic Egypt do?  Exactly what any god can do:  A “god” can work Miracles,  first Make and then Bend the all Rules, Change the Natural Order of Things….   I suppose my own religious notions, such as they are, posit an unchanging God defined by the phrase from the old BCP: “as it was in the beginning, it is now and ever shall be, world without end amen” which seems curiously absent from most Episcopal services these days.   I equate God with Nature, and while I believe rather fervently in Evolution, I believe Evolution operates according to certain utterly unchanging rules, such as the laws of thermodynamics, which even the discovery of man’s ability intentionally to split or fuse atoms could never quite change.

And yet the Godlike role of the Supreme Court in making and bending rules seems more than a bit undemocratic.   So that is the second part of the analysis we need to perform today: Was Roberts’ decision to side with Obamacare entirely a matter of political strategy?

 The American Concept of Constitutional Judicial Review predates Chief Justice John Marshall. The Supreme Court’s decision Chisholm v. Georgia 2 U.S. 412 (February 1, 1793)(Chisholm v Georgia, 2 U.S. 419, February 1 1793triggered the (I would now say very unfortunate) move to enact the 11th Amendment during the First Term of the Presidency of George Washington.  But Chief Justice Marshall’s notions of judicial review shaped the Court, much to his cousin Thomas Jefferson’s dismay and disgust.   I recall hearing the story of Marbury v. Madison and judicial review in my Freshman year at Tulane, from Professor Jean Danielson in Political Science H103, where I met my long-time college years best friend John K. Naland, now a long-time veteran of the U.S. State Department.  Professor Danielson explained the political genius of Marbury v. Madison was that it empowered the Court while respecting the political boundaries of the time.  Chief Justice Marshall knew that, as President Adams’ last major appointee, any decision made in favor of the appointment of Adams’ minor “midnight judges” including William Marbury would simply be ignored by the new Democratic-Republican administration of Jefferson (with James Madison as secretary of state and the defendant in the case) as an act of political partisanship on the part of a Federalist appointee favoring Federalist appointees.  On the other hand, to uphold Secretary of State Madison’s power to refuse to honor the appointments made by President Adams would seem like craven capitulation without legal or moral integrity.  So, in a result which no one ever anticipated, Chief Justice John Marshall carefully reasoned and soundly declared the statute authorizing the appointment of Magistrates in the District of Columbia to be an unconstitutional act in excess of Congress’ power under the Constitution—and the role of the U.S. Supreme Court as Constitutional arbiter of the United States was established forever—or, at least, for a long time.

That particular “long time” ended in 1936, which, as a another commentator/pundit on the Obamacare decision pointed out, was the last time in history that the United States Supreme Court overturned a major piece of Congressional legislation as Unconstitutional.    Franklin Delano Roosevelt’s first term as President was unlike anything the United States had ever since, including George Washington’s First Term.   In Washington’s First Term, the constant debate in Congress was whether the Federal Government had power under the Constitution to do much of anything at all.  The spirit was decidedly “conservative” in the sense of cautious, even as a new nation conceived in liberty and dedicated to the proposition that all men are created equal was being launched as a more formally organized “corporate” type of enterprise (the Articles of Confederation were much more analogous to a “partnership” among the States—with each partner having a nearly full veto power).

During FDR’s First Term, there were also many in Congress who asked whether the Federal Government had the power to do a great many of the things the New Deal proposed to do, from the NRA to the TVA (National Recovery Administration to the Tennessee Valley Authority).  But from 1933-1937, such questions were not asked in a cautious or even skeptical voice regarding what Congress and the Federal government could legitimately do, but in the desperate and panicked voice of people who saw and feared “you are taking our lives, our fortunes, our sacred honor” from us.  Those people sought recourse against the reckless usurpation of Federal Power in the Supreme Court, and in the years 1933-1937, the Supreme Court struck down 29 Congressionally passed statutes signed by the President as part of the New Deal.

Roosevelt’s first hundred days and all that followed provoked an unprecedented clash between the Supreme Court Justices and the “New Deal” alliance of the legislative and executive branches. At Roosevelt’s instigation, Congress in the 1930s enacted a series of laws ostensibly, supposed, aimed at ending the Great Depression and restoring the nation’s economic well-being, but in fact aimed at shoring up the American Elite, especially the Banking system, from the threat of a Communist and/or Fascist revolution analogous to those taking place in Europe at the same time.  Of eight major “program” statutes to come before the Court, only two were upheld. Laws that were struck down included the Agricultural Adjustment Act of 1933, the National Industrial Recovery Act of 1933, and the Bituminous Coal Conservation Act of 1935.  The Court came under heavy fire for its decisions, and Roosevelt proposed a controversial plan to increase the size of the Court, presumably to ensure a majority sympathetic to the New Deal.

Shortly after the plan was proposed, the Court defused the issue by upholding a series of revised New Deal laws.  Dominated by economic conservatives, to which group even late 19th/early 20th Century “Progressives” such as Oliver Wendell Holmes were (by comparison, anyhow) the Court threw out numerous laws Congress enacted to protect workers and consumers. The conflicts peaked in 1936. The Court threw out twenty-nine laws during that period, but the last of these was in 1936, when when the court invalidated a federal law that limited work hours and prescribed minimum wages for coal workers.

Everything changed in 1937 when, FDR Proposed the Judicial Procedures Reform Bill of 1937 on March 9 of that year in one of his legendary “Fireside chats” whereby he jumped over the Congress and all Constitutional Separation of Powers and asked the American people directly to endorse and support his programs.  The public reaction was overwhelmingly negative, almost the first time the 33rd President had seen any of his initiatives draw such opposition.  But the Justices of the Supreme Court saw the writing on the wall—mene, mene, tekel upharsin—and when faced with the two major cases challenging Social Security (the ultimate authority and most direct antecedent for Obamacare), the Supreme Court ruled in favor of the most massive fraud ever perpetrated on the American people—the law creating a “Social Security Trust Fund” with the bribed cooperation of the States—into which Social Security Trust Fund not one dime of real money (certainly not one dime of the 14 Trillion dollars paid since 1937 in Social Security Taxes) has ever been paid.

Helvering v. Davis (05-27-1937 Helvering v Davis 301 US 619 57 SCt 904 Jusice Cardozo endorses the SS Trust Fund Fraud) and Steward Machine Company v. Davis (Charles C Steward Mach Co v Davis) thus effectively marked the end of the Supreme Court as an independent branch of government.  The new mantra was not “that government is best which governs least” but instead, “The concept of the general welfare is not a static one”…. “Needs that were narrow or parochial a century ago may be interwoven in our day with the well-being of the nation. What is critical or urgent changes with the times.”   (Helvering v. Davis, 301 U.S. 619, 641, 57 S.Ct. 904, 909, 81 L.Ed. 1307, 1315 [1937])

From that time forward Courts held that there appeared to be only four (all extra-constitutional) prerequisites to a finding that a spending clause measure and condition attached to it are valid: (1) The federal power is used for a legitimate national purpose, i.e., promotion of the general welfare (Charles C. Steward Machine Co. v. Davis, 301 U.S. 548 at pp. 585–590, 57 S.Ct. at pp. 890–92 [1937], 81 L.Ed. at pp. 1290–1293); (2) the condition is related to a legitimate national goal (Charles C. Steward Machine Co. v. Davis, supra, at pp. 590–591, 57 S.Ct. at pp. 892–93, 81 L.Ed. at pp. 1292–1293; See also Note, Federal Grants and the Tenth Amendment: ‘Things As They Are’ and Fiscal Federalism (1981) 50 Fordham L.Rev. 130, 140–141); (3) the condition is related to the purpose of the federal funds whose receipt is conditioned (FCC v. League of Women Voters (1984) 468 U.S. 364, 104 S.Ct. 3106, 3132, 82 L.Ed.2d 278, 309 (Rehnquist, J. dissenting); State of Okl. v. Schweiker, 655 F.2d at pp. 407, 411); and (4) the condition is unambiguous (Pennhurst State School v. Halderman,  451 U.S. at p. 17, 101 S.Ct. at pp. 1539–40 [January 23, 1984])(Pennhurst State School And Hosp v Halderman).
It was in the spirit of such a “living constitution” that Chief Justice John Roberts allied himself with the enemies of limited government on June 28, 2012.  And it is in that sense, much like the Supreme Court in 1937, ruling in Roosevelt’s favor in both of the Social Security Cases, Helvering and Charles Steward above, that Chief Justice John Roberts “saved the Supreme Court” (http://news.yahoo.com/blogs/power-players-abc-news/did-chief-justice-roberts-save-supreme-court-103301790.html).  More likely, Chief Justice John Roberts just danced on Chief Justice John Marshall’s grave and said, “You think that failure to follow the Constitution is Judicial Treason?  Well, let’s see what you’re going to do about it now.”  According to that same article, Chief Justice Roberts had told the Senate at his confirmation hearings:
“Judges are like umpires. Umpires don’t make the rules; they apply them,” said Roberts at the time. “The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ballgame to see the umpire.”

Now, strangely enough, Chief Justice John Marshall wrote a very different kind of opinion in 1820:

The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution. Questions may occur which we would gladly avoid; but we cannot avoid them. All we can do is, to exercise our best judgment, and conscientiously to perform our duty.  Cohens v State of Virginia, 19 U.S. 264, 5 L.Ed. 257, 6 Wheaton 264 (March 3, 1820)

There is a great deal of confusion among the commentators and pundits, I think, about what “Judicial activism” really means.  I would NOT call Chief Justice John Marshall a Judicial Activist—although, indeed, he advocated throughout his 35 years on the bench a considerably more positive role for the Court in preserving the Constitution than Chief Justice John Roberts has shown to date.  “Judicial Activism” does not mean “striking down unconstitutional laws”—“Judicial Activism” as a term should be reserved for reshaping or restructuring the laws in the absence of Congressional Authority to do so.  The “Warren Court” from 1953-1971 was the epitome of “judicial activism”—the Supreme Court during those two decades effectively rewrote the laws of the United States and told CONGRESS and the STATES what to do, rather than vice-versa.

In the case of Obamacare, Chief Justice John Roberts acts his role as an umpire very poorly.  He has seen the foul, called it (under the commerce clause) and “covered it up” under the guise of the taxing power, which (in reality) is even less constitutionally justified than the commerce clause rationale (which at least has the past 75 years of tradition—however illegitimate, behind it).

And so was the U.S. Constitution rewritten in 1937 to allow for first the “relatively” modest program of Social Security and now, 75 years later—on the occasion of the 75th Annual Hunger Games (cf. Suzanne Collins, Catching Fire [2009] and Mockingjay [2010], both New York: Scholastic Press)—Obamacare comes forward to cap the fraud by, in Chief Justice John Roberts’ view—a non-coercive, mere “Tax” on those who do not buy governmentally mandated insurance… and of course, jail for those who do not pay their taxes.

SO WHAT IS THE SHORT-TERM SOLUTION?  NULLIFY OBAMACARE!  I should say that, without any hesitation whatsoever, I absolutely endorse and support the Tenth Amendment Center’s position on Obamacare (this Los Angeles based think tank is just one of the brightest stars on the Political Horizon—of our New Red Dawn):

Now that the Supremes have crushed Constitutional limits once again, the next step is to focus all our energy on a state and local level to NULLIFY this – and every other – unconstitutional act.
We have model legislation for yor state.  Ready to go right now.  Press your state reps to introduce this bill today, or for the next legislative session.
http://tenthamendmentcenter.com/legislation/federal-health-care-nullification-act/
Please SHARE this information widely!
*******
We need your help to continue this work, and help people take the next step at the state level.  Please join us, and help nullification happen!  Whether it’s $500 or $5, every bit of help right now is crucial!
Please visit this link to help now:
http://tenthamendmentcenter.com/donate/
*******
Thomas Jefferson told us that when the government “assumes undelegated powers” a nullification is THE “rightful remedy”
James Madison said that states were “duty bound to interpose….to arrest the progress of evil”
Today’s ruling is an assumption of undelegated powers, and evil is advancing.  The time to act in support of nullification in your area is NOW!  Please share the model legislation for Obamacare with as many people as possible, and please chip in as generously as possible to help us push this campaign aggressively.
While the task is difficult, our cause is just.
Concordia res parvae crescunt,
(small thing grow great by concord)
Michael Bolding
Tenth Amendment Center
==================================================
Our mailing address is:
Tenth Amendment Center
123 S. Figueroa St
Suite 1614
Los Angeles, CA 90012
Our telephone:
213.935.0553

AND WHAT DO I DO AS I WATCH ALL THIS TRANSPIRE?

I sigh.  I cry.  And sometimes I just want to lie down and die.  This is not the land of my birth, even though on the map it generally looks like it should be the same country as it was in 1960.

The transformation over the past fifty two years is simply horrific.  52 years was a key cycle of time among the Aztec, Maya, Mixtec, Tarascans & Zapotec in ancient Mesoamerica, and I can only say that I feel a certain sympathy for how an Aztec born in 1518 might have felt looking at the wreckage of his once proud nation in 1570 after 52 years of Spanish conquest, rape and pillage.  Like an Aztec born in the last year before the arrival of the Spanish, I have grown up and come to age watching my own people (the American Middle Class, especially Protestants of European descent) reduced to second class status, my people’s most attractive and beautiful women taken as prizes by the conquerors, my nation’s heritage and values denigrated, suppressed and taught in the schools as nothing but “heresy” from the New World Order.

I do speak Spanish fairly well and have spent many of the happier moments in my life in Mexico and elsewhere in the Hispanic World, from Bogotá to Barcelona, and I keep in touch with many friends and acquaintances of a Constitutional mindset from those parts of the world.  When they ask me what I consider to be the greatest single constitutional development under the Presidency of Barack Hussein Obama, I tell them without hesitation: N.A.D.A.  (aka Senate Bill 1867, you know, the statute that effectively repealed the Fourth, Fifth, and Sixth Amendments that passed the Senate 93-7 last December).

California Prisons (Brown v. Plata): Will this Result in Legal Reform or More Prison Building?

Overflowing Prison Populations Result from a Disgracefully Excessive and Oppressive “Justice” System (not a real crime wave)—the laws of the United States, but especially the People’s Republic of California, make every member of society either a real or potential criminal—releasing even 90% of these prisoners would not make society any more dangerous, while putting about 50% of the Judges and Prosecutors behind bars might be a major improvement in the quality of life generally….and restore at least part of the American Dream of Freedom to California

BROWN v PLATA:  2011 WL 1936074
Only the Westlaw citation is currently available.
Supreme Court of the United States
Edmund G. BROWN, Jr., Governor of California, et al., Appellants,
v.
Marciano PLATA et al.

(Full Text of Monday’s Decision is attached here in adobe.pdf: Brown v Plata May 23 2011 and microsoft word:Brown v Plata May 23 2011 )

No. 09–1233.
Argued Nov. 30, 2010.Decided May 23, 2011.
Syllabus*
*1 California’s prisons are designed to house a population just under 80,000, but at the time of the decision under review thepopulation was almost double that. The resulting conditions are the subject of two federal class actions. In Coleman v. Brown,filed in 1990, the District Court found that prisoners with serious mental illness do not receive minimal, adequate care. A Special Master appointed to oversee remedial efforts reported 12 years later that the state of mental health care in California’s prisonswas deteriorating due to increased overcrowding. In Plata v. Brown, filed in 2001, the State conceded that deficiencies in prisonmedical care violated prisoners’ Eighth Amendment rights and stipulated to a remedial injunction. But when the State had not complied with the injunction by 2005, the court appointed a Receiver to oversee remedial efforts. Three years later, the Receiver described continuing deficiencies caused by overcrowding. Believing that a remedy for unconstitutional medical and mental health care could not be achieved without reducing overcrowding, the Coleman and Plata plaintiffs moved their respective District Courts to convene a three-judge court empowered by the Prison Litigation Reform Act of 1995 (PLRA) to order reductions in the prisonpopulation. The judges in both actions granted the request, and the cases were consolidated before a single three-judge court. After hearing testimony and making extensive findings of fact, the court ordered California to reduce its prison population to 137.5% of design capacity within two years. Finding that the prison population would have to be reduced if capacity could not be increased through new construction, the court ordered the State to formulate a compliance plan and submit it for court approval.
Held:
1. The court-mandated population limit is necessary to remedy the violation of prisoners’ constitutional rights and is authorized by the PLRA. Pp. –––– – ––––.
(a) If a prison deprives prisoners of basic sustenance, including adequate medical care, the courts have a responsibility to remedy the resulting Eighth Amendment violation. See Hutto v. Finney, 437 U.S. 678, 687, n. 9, 98 S.Ct. 2565, 57 L.Ed.2d 522. They must consider a range of options, including the appointment of special masters or receivers, the possibility of consent decrees, and orders limiting a prison’s population. Under the PLRA, only a three-judge court may limit a prison population. 18 U.S.C. § 3626(a)(3). Before convening such a court, a district court must have entered an order for less intrusive relief that failed to remedy the constitutional violation and must have given the defendant a reasonable time to comply with its prior orders. § 3626(a)(3)(A). Once convened, the three-judge court must find by clear and convincing evidence that “crowding is the primary cause of the violation” and “no other relief will remedy [the] violation,” § 3626(a)(3)(E); and that the relief is “narrowly drawn, extends no further than necessary …, and is the least intrusive means necessary to correct the violation,” § 3626(a)(1)(A). The court must give “substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.” Ibid. Its legal determinations are reviewed de novo, but its factual findings are reviewed for clear error. Pp. –––– – ––––.
(b) The Coleman and Plata courts acted reasonably in convening a three-judge court. Pp. –––– – ––––.
*2 (1) The merits of the decision to convene are properly before this Court, which has exercised its 28 U.S.C. § 1253 jurisdiction to determine the authority of a court below, including whether a three-judge court was properly constituted. Gonzalez v. Automatic Employees Credit Union, 419 U.S. 90, 95, n. 12, 95 S.Ct. 289, 42 L.Ed.2d 249. Pp. –––– – ––––.
(2) Section 3626(a)(3)(A)(i)‘s previous order requirement was satisfied in Coleman by the Special Master’s 1995 appointment and in Plata by the 2002 approval of a consent decree and stipulated injunction. Both orders were intended to remedy constitutional violations and were given ample time to succeed—12 years in Coleman, and 5 years in Plata. Contrary to the State’s claim, § 3626(a)(3)(A)(ii)‘s reasonable time requirement did not require the District Courts to give more time for subsequent remedial efforts to succeed. Such a reading would in effect require courts to impose a moratorium on new remedial orders before issuing apopulation limit, which would delay an eventual remedy, prolong the courts’ involvement, and serve neither the State nor the prisoners. The Coleman and Plata courts had a solid basis to doubt that additional efforts to build new facilities and hire new staff would achieve a remedy, given the ongoing deficiencies recently reported by both the Special Master and the Receiver. Pp. –––– – ––––.
(c) The three-judge court did not err in finding that “crowding [was] the primary cause of the violation,” § 3626(a)(3)(E)(i). Pp. –––– – ––––.
(1) The trial record documents the severe impact of burgeoning demand on the provision of care. The evidence showed that there were high vacancy rates for medical and mental health staff, e.g., 20% for surgeons and 54.1% for psychiatrists; that these numbers understated the severity of the crisis because the State has not budgeted sufficient staff to meet demand; and that even if vacant positions could be filled, there would be insufficient space for the additional staff. Such a shortfall contributes to significant delays in treating mentally ill prisoners, who are housed in administrative segregation for extended periods while awaiting transfer to scarce mental health treatment beds. There are also backlogs of up to 700 prisoners waiting to see a doctor for physical care. Crowding creates unsafe and unsanitary conditions that hamper effective delivery of medical and mental health care. It also promotes unrest and violence and can cause prisoners with latent mental illnesses to worsen and develop overt symptoms. Increased violence requires increased reliance on lockdowns to keep order, and lockdowns further impede the effective delivery of care. Overcrowding’s effects are particularly acute in prison reception centers, which process 140,000 new or returning prisoners annually, and which house some prisoners for their entire incarceration period. Numerous experts testified that crowding is the primary cause of the constitutional violations. Pp. –––– – ––––.
(2) Contrary to the State’s claim, the three-judge court properly admitted, cited, and considered evidence of current prisonconditions as relevant to the issues before it. Expert witnesses based their conclusions on recent observations of prisonconditions; the court admitted recent reports on prison conditions by the Receiver and Special Master; and both parties presented testimony related to current conditions. The court’s orders cutting off discovery a few months before trial and excluding evidence not pertinent to the issue whether a population limit is appropriate under the PLRA were within the court’s sound discretion. Orderly trial management may require discovery deadlines and a clean distinction between litigation of the merits and the remedy. The State points to no significant evidence that it was unable to present and that would have changed the outcome here. Pp. –––– – ––––.
*3 (3) It was permissible for the three-judge court to conclude that overcrowding was the “primary,” but not the only, cause of the violations, and that reducing crowding would not entirely cure the violations. This understanding of the primary cause requirement is consistent with the PLRA. Had Congress intended to require that crowding be the only cause, the PLRA would have said so. Pp. –––– – ––––.
(d) The evidence supports the three-judge court’s finding that “no other relief [would] remedy the violation,” § 3626(a)(3)(E)(ii). The State’s claim that out-of-state transfers provide a less restrictive alternative to a population limit must fail because requiring transfers is a population limit under the PLRA. Even if they could be regarded as a less restrictive alternative, the three-judge court found no evidence of plans for transfers in numbers sufficient to relieve overcrowding. The court also found no realistic possibility that California could build itself out of this crisis, particularly given the State’s ongoing fiscal problems. Further, it rejected additional hiring as a realistic alternative, since the prison system was chronically understaffed and would have insufficient space were adequate personnel retained. The court also did not err when it concluded that, absent a populationreduction, the Receiver’s and Special Master’s continued efforts would not achieve a remedy. Their reports are persuasive evidence that, with no reduction, any remedy might prove unattainable and would at the very least require vast expenditures by the State. The State asserts that these measures would succeed if combined, but a long history of failed remedial orders, together with substantial evidence of overcrowding’s deleterious effects on the provision of care, compels a different conclusion here. Pp. –––– – ––––.
(e) The prospective relief ordered here was narrowly drawn, extended no further than necessary to correct the violation, and was the least intrusive means necessary to correct the violation. Pp. –––– – ––––.
(1) The population limit does not fail narrow tailoring simply because prisoners beyond the plaintiff class will have to be released through parole or sentencing reform in order to meet the required reduction. While narrow tailoring requires a “ ‘ “fit” between the [remedy’s] ends and the means chosen to accomplish those ends,’ ” Board of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 480, 109 S.Ct. 3028, 106 L.Ed.2d 388, a narrow and otherwise proper remedy for a constitutional violation is not invalid simply because it will have collateral effects. Nor does the PLRA require that result. The order gives the State flexibility to determine who should be released, and the State could move the three-judge court to modify its terms. The order also is not overbroad because it encompasses the entire prison system, rather than separately assessing each institution’s need for apopulation limit. The Coleman court found a systemwide violation, and the State stipulated to systemwide relief in Plata. Assuming no constitutional violation results, some facilities may retain populations in excess of the 137.5% limit provided others fall sufficiently below it so the system as a whole remains in compliance with the order. This will afford the State flexibility to accommodate differences between institutions. The order may shape or control the State’s authority in the realm of prisonadministration, but it leaves much to the State’s discretion. The order’s limited scope is necessary to remedy a constitutional violation. The State may move the three-judge court to modify its order, but it has proposed no realistic alternative remedy at this time. Pp. –––– – ––––.
(2) The three-judge court gave “substantial weight” to any potential adverse impact on public safety from its order. The PLRA’s “substantial weight” requirement does not require the court to certify that its order has no possible adverse impact on the public. Here, statistical evidence showed that prison populations had been lowered without adversely affecting public safety in someCalifornia counties, several States, and Canada. The court found that various available methods of reducing overcrowding—good time credits and diverting low-risk offenders to community programs—would have little or no impact on public safety, and its order took account of such concerns by giving the State substantial flexibility to select among the means of reducing overcrowding. The State complains that the court approved the State’s population reduction plan without considering whether its specific measures would substantially threaten public safety. But the court left state officials the choice of how best to comply and was not required to second-guess their exercise of discretion. Developments during the pendency of this appeal, when the State has begun to reduce the prison population, support the conclusion that a reduction can be accomplished without an undue negative effect on public safety. Pp. –––– – ––––.
*4 2. The three-judge court’s order, subject to the State’s right to seek its modification in appropriate circumstances, must be affirmed. Pp. 41–48.
(a) To comply with the PLRA, a court must set a population limit at the highest level consistent with an efficacious remedy, and it must order the population reduction to be achieved in the shortest period of time reasonably consistent with public safety. Pp. –––– – ––––.
(b) The three-judge court’s conclusion that the prison population should be capped at 137.5% of design capacity was not clearly erroneous. The court concluded that the evidence supported a limit between the 130% limit supported by expert testimony and the Federal Bureau of Prisons and the 145% limit recommended by the State Corrections Independent Review Panel. The PLRA’s narrow tailoring requirement is satisfied so long as such equitable, remedial judgments are made with the objective of releasing the fewest possible prisoners consistent with an efficacious remedy. Pp. –––– – ––––.
(c) The three-judge court did not err in providing a 2–year deadline for relief, especially in light of the State’s failure to contest the issue at trial. The State has not asked this Court to extend the deadline, but the three-judge court has the authority, and responsibility, to amend its order as warranted by the exercise of sound discretion. Proper respect for the State and for its governmental processes require that court to exercise its jurisdiction to accord the State considerable latitude to find mechanisms and make plans that will promptly and effectively correct the violations consistent with public safety. The court may, e.g., grant a motion to extend the deadline if the State meets appropriate preconditions designed to ensure that the plan will be implemented without undue delay. Such observations reflect the fact that the existing order, like all ongoing equitable relief, must remain open to appropriate modification, and are not intended to cast doubt on the validity of the order’s basic premise. Pp. –––– – ––––.
Affirmed.

Kathy Ann Garcia-Lawson’s Petition for Writ of Certiorari in the SCOTUS (Docket Files)

Supreme Court Document

No. 10-1159
Title:
Kathy Ann Garcia-Lawson, Petitioner
v.
Jeffrey P. Lawson
Docketed: March 24, 2011
Lower Ct: United States Court of Appeals for the Eleventh Circuit
Case Nos.: (10-12369)
Decision Date: October 6, 2010
~~~Date~~~ ~~~~~~~Proceedings  and  Orders~~~~~~~~~~~~~~~~~~~~~
Jan 4 2011 Petition for a writ of certiorari filed. (Response due April 25, 2011)
Jan 4 2011 Appendix of Kathy Ann Garcia-Lawson filed.
03-14-2011 Final Revisions to KAGL Petition for Writ of Certiorari Appendix & Certificates

~~Name~~~~~~~~~~~~~~~~~~~~~ ~~~~~~~Address~~~~~~~~~~~~~~~~~~ ~~Phone~~~
Attorneys for Petitioner:
Kathy Ann Garcia-Lawson 2620 Nature’s Way (512) 968-2500
Palm Beach Gardens, FL  33410
Party name: Kathy Ann Garcia-Lawson

Civil Rights Removal: A SCOTUS Petition for Writ of Certiorari to the Eleventh Circuit Court of Appeals

Readers of this blog know of my long-standing fraternal affection for and ideological and spiritual collegiality with Dr. Kathy Ann Garcia-Lawson of Palm Beach Gardens, Florida 33410.  Kathy suffered terribly this year when after 5 years of valiant and courageous resistance, she was at last unable to prevent the entry of a devastating (and for many reasons completely illegal and improper) final judgment of dissolution of marriage on April 29, 2010.   In this Order, Judge Richard L. Oftedal sought to criticize and punish Kathy for standing up to the system and objecting to it.  Kathy’s Final Judgment Oftedal 4-29-2010.  People like Judge Oftedal really dislike people like Kathy (and me) who stand in the way of the fully perfected implementation of the “Brave New World” Envisioned by Aldous Huxley in 1930 and largely incorporated as the “New World Order” being born before our very eyes.

Whether, like Kathy and I are, you are horrified by or quite entranced by the fluidity, instability, and impermanence of human relationships, human rights, and the complete and utter corruption of the institutions of government entrusted to protect and promote both, it is a reality that the most sacred of all contracts, the contract of marriage, into which most people would ever dream of entering is guaranteed to be breachable by the government with little or no “per se” penalty.  If there is an estate, much of it will be confiscated by the lawyers, and the rest of it will be divided and slaughtered like Solomon’s baby (if the true mother had not intervened—because in the modern scenario the mother may well WANT the baby to die….that, too, is a constant background feature of modern life—the abortion meat-grinder).

What emerged as a particularly important issue in Kathy’s case, however, was at best tangentially related to the institution of marriage.  That issue was: does any judicial procedure whose outcome is absolutely assured or guaranteed, even as to the one single repetitive but common issue uniting all such procedures, qualify as a fair procedure?  Specifically, since divorce is not expressly and overtly guaranteed by law: does a judicial process which grants it automatically as if it were expressly and overtly guaranteed, as a result of an overwhelming state-wide custom, practice, or policy having the force and effect of law, violate equal protection of the law?  The classes of persons involved are determined only at the time of the initiation of judicial proceedings: petitioners for dissolution must always win their petition for dissolution.  Respondents (like Kathy) to a petition for dissolution must always lose.

As it happens, there is at least one Supreme Court case which seems to say that automatic resolution in favor of one party, any outcome determinative law or custom having the force of law, is unconstitutional.  That case is Greenwood v. Peacock (1966).  Greenwood v Peacock 1966

I worked with Kathy for a long time on trying to get the U.S. District Court for the Southern District of Florida to accept Kathy’s removal of her dissolution proceedings on Civil Rights Grounds pursuant to 28 U.S.C. Section 1443(1). We sought reconsideration of the Order of Remand pursuant to the unique provisions of 28 U.S.C. Section 1447(d). April 13 2010 KAGAL Rule 59(e) Motion for REVOCATION OF REMAND.doc- Kathy’s draft Judge Kenneth A. Marra would not accept it, although he did finally acknowledge that Civil Rights Removal was an express congressional exception to the “Well-Pled Complaint” rule that the grounds for removal must plainly appear on the face of any complaint for the case to be removable.  Document 9 Denying Rule 59(e) KAM KAGL

The key issue in Civil Rights Removal is a judicially formulated interpretation, functioning as a custom, practice, or policy having the force and effect of law, which prevents most courts from allowing removal under 28 U.S.C. Section 1443(1) is that it is an affirmative action program: available to minorities only, and available to them only where specifically anti-minority (racially oppressive) state legislation is specifically overridden by affirmative federal legislation. Needless to say, the number of cases fitting this particular paradigm can be counted, well, on the thumb and forefinger of one hand, because that is precisely the number of civil rights removals the Supreme Court has ever allowed to stand.  Rachel v Georgia 1966 Rachel held that where a specific Federal statute (the Civil Rights Act of 1964) guaranteed equal access to restaurants for persons of all races specifically overrode Georgia “Jim Crow” law mandating segregation of the races, removal of Georgia state prosecutions for trespass against black diners would be permitted under 28 U.S.C. Section 1443(1).

What the judicial policy of affirmative action means is that what SHOULD be a powerful tool for correcting abuses in state courts is all but useless.  The language of 28 USC 1443 as enacted by Congress neither mentions race nor color nor any aspect of black-white minority-majority tensions in America, but the Supreme Court has construed the statute so as to mean absolutely nothing to anyone for going on 44 years now.

I suggested to Kathy and Kathy agreed that the Supreme Court’s construction of Civil Rights Removal is nothing but a blatant affirmative action program, a positive form of racial discrimination in favor of a racial minority or racial minorities generally which cannot pass the “Strict Scrutiny” test formulated for all equal protections and fundamental rights issues by the Supreme Court in the late 1970s and consistently applied ever since.  Quite simply: rendering 28 U.S.C. Section 1443(1) nugatory by imposing a racial gloss on racially neutral language is neither the simplest nor most narrowly tailored route to achieving or maintaining any compelling governmental goal or purpose.  In fact, no governmental purpose (aside from limiting the number of cases removed from state to federal court—hardly a “compelling” governmental purpose in any sense of the term) has ever even been mentioned.

So, following Marra’s orders, the Eleventh Circuit Court of Appeals ignored Kathy’s appeal and summarily affirmed Marra’s Order of Remand, without even MENTIONING the question of strict scrutiny for all race-based schemes even those called “benign.”  10-12369 Lawson v Lawson 201012369 10-06-2010

I think the most amazing aspect of the Eleventh Circuit’s Order was its complete refusal to address our strict scrutiny attack on the Judicial Policy of Implementing or Constructing the BROAD, ALL-INCLUSIVE language of 28 U.S.C. Section 1443 as an extremely narrow racial affirmative action program which really serves no one, black, white, yellow, brown, red, or completely indeterminate.   The normal Supreme Court rule is that courts must give full force and effect to EVERY WORD of any congressionally enacted statute.  Here, completely reversing that norm, the Supreme Court ruled that courts must not give effect to any words in the statute at all, but only to the Supreme Court’s gloss on the statute.  In essence, what the Supreme Court admitted in its 28 USC 1443 jurisprudence was this: the Civil Rights movement and reform of the 1950s and 1960s was really great for keeping African-Americans out of the clutches of communist infiltrators in the United States, who had gained so much of a foothold in the Black community (north and south) during the 1920s, 1930s, and 1940s, but once we had obviously won the Cold War, it was perfectly reasonable to forget about Civil Rights for any other segment of the population because, well, if Federal Courts had to police the several State’s compliance with equal protection and due process, two terribly undesirable things would happen: (1) Federal Judges would have to work really hard, because lots of cases would be removed from state court, and (2) Civil Rights might actually be upheld as applying to all people, regardless of race, creed, or color, and to allow everyone, even white people, to assert civil rights would just, really, radically, and perhaps definitively limit the power of government—and the Warren and Burger Courts certainly had NO interest in limiting the power of the Central Government (or, really, any other government for that matter—the Rehnquist and Roberts Courts really have not been significantly better—Justice Scalia has always amazed me for his jurisprudence of, “a democratically elected legislature cannot enact an unconstitutional statute unless I really don’t like it.”

So, to complete this little essay, I offer you now Kathy’s SCOTUS Petition for Writ of Certiorari to the Eleventh Circuit.  01-04-11 Petition for Writ of Certiorari Final CRR-KAGL This is a single issue petition focusing on the scope of Civil Rights Removal and the question of whether the original Congressional language adopted by the Democratically elected legislature OR the judicial construction, gloss, and interpretation imposed by the Supreme Court in 1966-1975 should prevail despite the fact that the Supreme Court in so doing designated Civil Rights Removal as a positively discriminating affirmative action program which is irrational in that it benefits almost nobody and renders Congress’ statutory language completely nugatory.

I for my part am interested in Civil Rights Removal because of my involvement in another field of American law whose outcome is almost as uniformly determined as dissolution of marriage/divorce cases: namely, judicial foreclosure and eviction and judicial eviction following non-judicial foreclosure.   Many homeowners have attempted to use Civil Rights Removal only to be told that if the state statutes apply equally to blacks, whites, hispanics, and all other racial groups, Civil Rights Removal is not available no matter how many non-racially defined civil rights and fundamental constitutional guarantees are violated.  Kathy and I would welcome any and all commentary on this Petition, to be sure. I would also like to express my deep gratitude to Edward Villanueva of San Diego who has underwritten the continued litigation of this and many other issues, and to the newest member of Tierra Limpia/Deo Vindice, S. P.,  who ably assisted in the preparation and editing of the Petition under rather astounding circumstances and short notice while I was otherwise incapacitated.