KRIS KOBACH - NO VOTER FRAUD IN KANSAS - PHOTO IDENTIFICATION LAW - & INTELLECTUAL FRAUD

Let's be clear, voting is a fundamental right. The Legal Information Institute, http://www.law.cornell.edu/wex/fundamental_right, provides this discussion of what the term "fundamental right" entails:

Fundamental rights are a group of rights that have been recognized by the Supreme Court as requiring a high degree of protection from government encroachment. These rights are specifically identified in the Constitution (especially in the Bill of Rights), or have been found under Due Process. Laws limiting these rights generally must pass strict scrutiny to be upheld as constitutional. Examples of fundamental rights not specifically listed in the Constitution include the right to marry and the right to privacy, which includes a right to contraception and the right to interstate travel.

Definition from Nolo’s Plain-English Law Dictionary

In constitutional law, certain rights protected by the due process or equal protection clause that cannot be regulated unless the regulating law passes a rigorous set of criteria (strict scrutiny). Fundamental rights, as defined by the Supreme Court, include various rights of privacy (such as marriage and contraception), the right to interstate travel, and the right to vote. [Definition provided by Nolo’s Plain-English Law Dictionary.]

Kansas Secretary of State Kris Kobach waged a campaign premised on the need to curtail voter fraud.  His campaign represented the height of intellectual fraud as he sold a bogus argument to a willing Republican electorate.  I call it intellectual fraud, which Reference.com defines as that which "signifies falsification of a position taken or implied by an author or speaker, within a book, controversy or debate, or an idea deceptively presented to hide known logical weaknesses."  See, http://www.reference.com/browse/fraud.

Kris Kobach falsified the position that there was widespread voter fraud in Kansas in his 2010 with Secretary of State Chris Biggs.  Kobach deceptively presented his idea which he knew, or should have known, had logical weaknesses.  But Kobach's intellectual fraud did not stop with his false campaign against Biggs.  And yes, I said false campaign because, as cited by the Osawatomie Journal this past Wednesday, the New York Times reported that "...Kansas had only one prosecution for voter fraud in the last six years.  But because of that vast threat to Kansas democracy, an estimated 620,000 Kansas residents who lack government ID now stand to lose their right to vote." 

Kobach's campaign said the photo identification was needed to assure the fairness of our elections.  Denying 600,000 Kansans the right to vote is fair?  I think not.  Now the logical weaknesses come home to roost.  If you are one of the 600,000 who live in either Miami County or Linn County   you cannot simply go to the office of the County Clerk and get your free state issued photo identification.  You have to go to Olathe, Johnson County, Kansas. 

Think about that, you don't have a driver's license, don't need a driver's license, don't want a driver's license, but in order to vote you have to go north a county or two to get a free state issued photo identification card.

That card isn't going to be free if you need to present a certified copy of your birth certificate, which you do not have, to get the state issued photo identification card.  That is why Kobach's law is an end run around the 24th Amendment which banned poll taxes. 

Now Kobach is getting all huffy blaming State Senator Kelly Kutala [D - Kansas City] for his failure, as Secretary of State, to shepherd his bills through the Kansas Legislature.  There is another problem with the state issued photo identification card.  The story is fully reported by the Topeka Capitol Journal online edition @ http://cjonline.com/news/2012-01-26/kobach-blames-kultala-free-id-flap. 

The article says that "workers in the Bureau of Vital Statistics, overseen by KDHE, were under the impression that they were to continue charging for all birth certificates until 2013."  Kobach thought they were going to be "free" this year.  Kobach didn't exercise due diligence and follow up on his own legislation.  This is what happens when the Secretary of State is more interested in political fanfare than the orderly administration of his office.  And didn't Chris Biggs warn us about this?

More logical weaknesses in Kobach's photo identification come from what you'd expect the Ivy League educated Law Professor to understand.  Either he doesn't or he doesn't care.  When a state is going to regulate a fundamental right it must do so in the least restrictive manner possible, it must do so only when there is a compelling state interest so to do, it must narrowly tailor its statute to achieve compliance with that compelling state interest.  Kobach hasn't done any of this.

There is no voter fraud of statistically significance in Kansas. As the New York Times reported in the previous six years there has been only one prosecution.  Since Kobach took office he found no widespread voter irregularity.  At one point Kobach said there were 67 cases, then it dropped to 41 cases, and no matter how few instances he can cite there have been zero prosecutions since he took office.  Had Kobach stumbled onto even a small cluster voter fraud cases, he would be strutting around Kansas like a banty rooster.  He didn't, he ain't.

If there is no voter fraud, there is no compelling state interest.  If there is no compelling state interest then this statute needs to be struck down in federal court as an unlawful interference with the right to vote.

Kobach's statute is not providing the least restrictive means nor is it narrowly tailored to achieve the nonexistent compelling state interest.  Kobach's statute requires the citizen to bear the expense of obtaining a certified copy of his or her birth certificate before getting the "free" photo identification card.  Kobach's statute requires citizens to travel out of county to find a state office capable of issuing the "free" photo identification card. 

The law, if it were needed - and it is not- could have made it easier on the citizen to register to vote.  This is why, if you don't have your birth certificate you can go online and get one.  That costs between $20 and $30.  The cost aside for a moment, what happens when you ask the internet site for a birth certificate?  That web site verifies that you are you by having you answer a series of question to which only you will know the answers.  You answer those questions correctly and you pay and you get the certified copy of the birth certificate shipped by USPS, or UPS, or FedEx directly to your door. 

So why go through the middleman?  Isn't the least restrictive means to give all the County Clerks and DMV offices access to that data base.  That way when a citizen shows up at the DMV, the County Courthouse, or its Annex the county or state employee can log on and verify, with the same degree of certitude that gets a person a birth certificate from a web site, that the citizen is who the citizen says they are.  And doesn't it make sense in many of Kansas' rural counties to let local officials look across the counter and see their neighbors, and knowing that their neighbors are who they say they are expedite this process.  And yes, the State of Kansas should bear this cost to correct Kobach's problem which doesn't exist. 

If there was an issue with voter fraud in Kansas, and there is not, Kobach purports himself to be a man smart enough and educated sufficiently to craft legislation that is more Constitutionally compatible.  His failure so to do makes me think his intellectual fraud runs deep.

Has Kris Kobach Once Again Run Amok On The Shoals Of Preemption? - Part One - Maria Gonzalez v. Arizona

While preparing a blog posting on Kansas' new prove your citizenship please, as you register to vote, otherwise known as HB 2067 the case of Maria Gonzalez v. Arizona reared its lovely head.

This case is interesting because after the three judge panel (which included retired United States Supreme Court Justice Sandra Day O'Connor) the Chief Judge of the Ninth Circuit Court of Appeals issued this order. "Upon the vote of a majority of nonrecused active judges, it is ordered that- this case be reheard en banc pursuant to Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit." This is what is known as an en banc order, meaning that the case will be reheard by all active judges of the Ninth Circuit who have not recused themselves.

In terms of appellate advocacy, an en banc opinion carries more weight than the opinion of a three judge panel. Such opinions are less likely to be overturned on appeal by the United States Supreme Court because the possibility of all the judges of the circuit making the same error of law is remote.

My inquiry took me to the national motor voter law better known as the National Voter Registration Act, [NVRA], 42 U.S.C. §1977gg - 3. What then did that three judge panel say about proof of citizenship? The opinion, which is not precedential, was heard by O'Connor, Circuit Judge Sandra Ikuta, and Chief Judge Alex Kozinski. Ikuta wrote the majority opinion and Kozinski wrote a dissent.

The three judge panel also took a hard look at the NVRA and reached opposing conclusions. For his part Chief Judge Kozinski adheres to precedent. The Ninth Circuit has previously held that the NVRA did not preempt States from requiring proof of citizenship. See, Gonzalez I, 485 F.3d at 1048.

Judge Kozinski's dissent focuses on the rules of precedent and how the Ninth Circuit has been resolving differences between three judge panel opinions which differ from en banc opinions. Like making sausage, this is not pretty.

Ikuta's majority opinion provides the history. "The Gonzalez I panel thereafter affirmed the district court’s denial of the preliminary injunction, holding that Proposition 200’s registration requirement was not a poll tax, id. at 1049, and was not a violation of the NVRA, id. at 1050-51. The district court subsequently granted Arizona’s motion for summary judgment, relying on Gonzalez I to rule that Proposition 200 was not an unconstitutional poll tax and was not invalid as conflicting with the NVRA. After trial, the district court resolved all other claims in favor of Arizona, holding that Proposition 200 did not violate § 2 of the Voting Rights Act and did not discriminate against naturalized citizens or burden the fundamental right to vote in violation of the Fourteenth Amendment’s Equal Protection Clause." Emphasis added.

The Elections Clause

Ikuta's analysis first looks at the Elections Clause of the Constitution. "In a nutshell, the Elections Clause gives state governments initial responsibility to regulate the mechanics of national elections, “but only so far as Congress declines to preempt state legislative choices.” Foster v. Love, 522 U.S. 67, 69 (1997)."

The history of the Elections Clause reveals the reasoning behind this unusual delegation of power. Under the Articles of Confederation, the states had full authority to maintain, appoint, or recall congressional delegates. At the Philadelphia Convention, delegates expressed concern that, if left unfettered, states could use this power to frustrate the creation of the national government, most obviously by neglecting to hold federal elections. The Framers decided that Congress should be given the authority to oversee the states’ procedures related to national elections as a safeguard against potential state abuse.

Ikuta writes that a "state’s role in the creation and implementation of federal election procedures under the Elections Clause is to administer the elections through its own procedures until Congress deems otherwise; if and when Congress acts, the states are obligated to conform to and carry out whatever procedures Congress requires."

The Supremacy Clause

Ikuta notes that the Supreme Court has given the federal courts guidance when interpreting the Supremacy Clause. First, in examining claims that a federal law preempts a state statute through the Supremacy Clause, the Supreme Court instructs courts to begin with a presumption against preemption. Second, the Court has adopted a “plain statement rule,” holding that a federal statute preempts a state statute only when it is the “clear and manifest purpose of Congress” to do so.

Ikuta finds that " the Elections Clause, as a standalone preemption provision, establishes its own balance, resolving all conflicts in favor of the federal government." The inquiry into the presumption against preemption does not apply in Election Clauses cases. This is true because the power over elections is delegated to the States and is not a power reserved to them.

Ikuta's approach is to " consider the state and federal laws as if they comprise a single system of federal election procedures." She explains that "[if] the state law complements the congressional procedural scheme, we treat it as if it were adopted by Congress as part of that scheme. ... If Congress addressed the same subject as the state law, we consider whether the federal act has superseded the state act, based on a natural reading of the two laws and viewing the federal act as if it were a subsequent enactment by the same legislature."

Ikuta then takes her analysis into an attempt to harmonize the NVRA with Arizona's Proposition 200. She looks first at Congressional intent. : Congress enacted the NVRA because, among other reasons, it determined that discriminatory and unfair registration laws and procedures can have a direct and damaging effect on voter participation in elections for Federal office and disproportionately harm voter participation by various groups, including racial minorities.” 42 U.S.C. § 1973gg(a)."

Going through the history of Congress' efforts to eliminate discriminatory and unfair voter registration laws Ikuta explains the painfully slow process of litigation before moving on the Voting Rights Act, [VRA]. The VRA accomplished many of the Congressional goals concerning voting, but did not address the problems of voter registration. Citing legislative history she says "the VRA failed to address voter registration procedures, which imposed a “complicated maze of local laws and procedures, in some cases as restrictive as the outlawed practices, through which eligible citizens had to navigate in order to exercise their right to vote,” H.R. Rep. No. 103-9, at 3 (1993)."

Congressional Intent

"Congress found that, while over eighty percent of registered citizens voted in Presidential elections, only sixty percent of eligible voters were registered. H.R. Rep. No. 103-9, at 3. Public opinion polls showed that the primary reason eligible citizens were not voting was the failure to register. Id. While acknowledging that this failure was attributable to many factors outside its control, Congress enacted the NVRA to address the problems within its control, namely those barriers to registration that were imposed by state governments. See id. Under the Elections Clause, Congress had the power “to provide a complete code for congressional elections, not only as to times and places, but in relation to . . . registration.” Smiley v. Holm, 285 U.S. 355, 366 (1932). Through this authority, Congress enacted the NVRA to remove these obstacles and “to provide simplified systems for registering to vote in federal elections.” Young v. Fordice, 520 U.S. 273, 275 (1997),"

Ikuta then connects the Congressional intent with the scheme of practice which the NVRA imposes on the states. That scheme includes not only permitting voter registration at the Departments of Motor Vehicles, but also requiring State Offices which serve the poor and disabled, those who would not necessarily come into contact with the drivers license bureau, to provide voter registration services.

Ikuta goes into detail about the proscribe Federal Form for Voter Registration. Here is the pertinent part of the statute.

The Federal Form:

(1) may require only such identifying information (including the

signature of the applicant) and other information (including data

relating to previous registration by the applicant), as is necessary

to enable the appropriate State election official to assess the eligibility

of the applicant and to administer voter registration and

other parts of the election process;

(2) shall include a statement that—

(A) specifies each eligibility requirement (including citizenship);

(B) contains an attestation that the applicant meets each such

requirement; and

(C) requires the signature of the applicant, under penalty of perjury;

(3) may not include any requirement for notarization or other formal

authentication; and

(4) shall include, in print that is identical to that used in the attestation

portion of the application—

(I) [voter eligibility requirements and penalties for false applications,

§ 1973gg-6(a)(5)]

(ii) a statement that, if an applicant declines to register to vote,

the fact that the applicant has declined to register will remain

confidential and will be used only for voter registration purposes;

and

(iii) a statement that if an applicant does not register to vote, the

office at which the applicant submits a voter registration application

will remain confidential and will be used only for voter registration

purposes.

§ 1973gg-7(b).

Election Clause Analysis: Is Proposition 200’s documentary proof of citizenship requirement is superseded by the NVRA ?

The appellate court considered if the state and federal enactments together as if they composed a single system of federal election procedures. Then the appellate court considered whether consider whether, read naturally, the NVRA provisions complement Proposition 200’s voter registration requirements or supersede them. The holding said that where "a natural interpretation of the language of the two enactments leads to the conclusion that the state law does not function consistently and harmoniously with the overriding federal scheme, then it is replaced by the federal statute."

Ikuta Finds Conflict

"Applying this framework, we conclude that Proposition 200’s documentary proof of citizenship requirement conflicts with the NVRA’s text, structure, and purpose. First, the NVRA addresses precisely the same topic as Proposition 200 in greater specificity, namely, the information that will be required to ensure that an applicant is eligible to vote in federal elections."

"Given the NVRA’s comprehensive regulation of the development of the Federal Form, there is no room for Arizona to impose sua sponte an additional identification requirement as a prerequisite to federal voter registration for registrants using that form. If viewed as a second enactment by the same legislature, the NVRA clearly subsumes Proposition 200’s additional documentary requirement on registrants using the Federal Form."

Congressional Intent Vitiated

"Further supporting this conclusion," Ikuta writes, "the value of the Federal Form (and hence a centerpiece of the NVRA) would be lost, and Congress’s goal to eliminate states’ discriminatory or onerous registration requirements vitiated, if we were to agree with Arizona that states could add any requirements they saw fit to registration for federal elections through the Federal Form."

"Moreover, specific statutory language in the NVRA, when read in an unstrained and natural manner, is inconsistent with the state enactment. The NVRA mandates that states “shall accept and use” the Federal Form when applicants register by mail. § 1973gg-4(a). It likewise requires “acceptance” of the completed Federal Form at state office buildings, which must be transmitted to the appropriate State election officials. § 1973gg-5(a)(4)(iii). The state must implement these methods of registering voters, as well as the combined motor vehicle-voter registration form, § 1973gg-3(c)(1), “notwithstanding any other Federal or state law,” § 1973gg-2(a)."

"Structurally, allowing states to impose their own requirements for federal voter registration on registrants using the Federal Form would nullify the NVRA’s procedure for soliciting state input, and aggrandize the states’ role in direct contravention of the lines of authority prescribed by Section 7. The NVRA permits states to suggest changes to the Federal Form, but gives the EAC ultimate authority to adopt or reject those suggestions. § 1973gg-7(a)."

"Proposition 200 is not in harmony with the intent behind the NVRA, which is to reduce state-imposed obstacles to federal registration. It is indisputable that by requiring documentary proof of citizenship, Proposition 200 creates an additional state hurdle to registration. As indicated in our overview, supra Part C.2, the NVRA was sensitive to the multiple purposes of a federal voter registration scheme, including the need “to establish procedures that [would] increase the number of eligible citizens who register to vote in elections for Federal office” and the need to protect “the integrity of the electoral process.” § 1973gg(b). The balance struck by the EAC pursuant to § 1973gg-7(a) was to require applicants to attest to their citizenship under penalty of perjury, but not to require the presentation of documentary proof."

Stay tuned to the opinion of the Ninth Circuit en banc. Once the judges get past the sausage making I expect they will hammer out an opinion, with a dissent or two. This is the stuff that makes its way to the Supreme Court because the Court takes its role in clarifying the law seriously.

 

USA v. ARIZONA - THE SB1070 CASE ON APPEAL - PART THREE

S.B. 1070 Section 3 provides: “In addition to any violation of federal law, a person is guilty of willful failure to complete or carry an alien registration document if the person is in violation of 8 United States Code section 1304(e) or 1306(a).”15 Ariz. Rev. Stat. Ann. § 13-1509(A) (2010). The penalty for violating Section 3 is a maximum fine of one hundred dollars, a maximum of twenty days in jail for a first violation, and a maximum of thirty days in jail for subsequent violations. Ariz. Rev. Stat. Ann. § 13-1509(H). Section 3 “does not apply to a person who maintains authorization from the federal government to remain in the United States.” Ariz. Rev. Stat. Ann. § 13-1509(F) (2010). Section 3 essentially makes it a state crime for unauthorized immigrants to violate federal registration laws.

Judge Paez's opening volley on §3 refutes any presumption against preemption because enforcing immigration laws is not an area traditionally occupied by the States. That means the presumption safeguarding the historic police powers of the States does not apply.

Judge Paez next engages in statutory interpretation of 8 U.S.C. §§ 1304 and 1306. Paez writes: "These sections create a comprehensive scheme for immigrant registration, including penalties for failure to carry one’s registration document at all times, 8 U.S.C. § 1304(e), and penalties for willful failure to register, failure to notify change of address, fraudulent statements, and counterfeiting. 8 U.S.C. § 1306 (a)-(d). These provisions include no mention of state participation in the registration scheme. By contrast, Congress provided very specific directions for state participation in 8 U.S.C. § 1357, demonstrating that it knew how to ask for help where it wanted help; it did not do so in the registration scheme."

Dismantling the intellectual sleight of hand apparently devised by SB 1070's brain trust, Kris Kobach, Judge Paez exposes the weakness of Arizona's legal argument.

Arizona was arguing that §3 was not preempted because Congress had invited the participation of the States in the general scheme of immigration enforcement.

Paez writes "Congress has expressly indicated how and under what conditions States should help the federal government in immigration regulation. See 8 U.S.C. §§ 1621-25, 1324a(h)(2).

The sections Arizona cites authorize states to limit certain immigrants’ eligibility for benefits and to impose sanctions on employers who employ unauthorized immigrants." Paez noted that Congress did not intend for the States to engage in the enforcement or punishment of federal immigration registration rules. Paez is not letting Arizona get away with Kobach's clever argument of usurping authority from one specific section of the INA and applying it generally to all sections of the INA.

Paez strikes at the heart of Arizona's Kobachian weakness by pointing out that which a Professor of Constitutional Law should be aware, rulings of the Supreme Court.

Paez says "S.B. 1070 Section 3 plainly stands in opposition to the Supreme Court’s direction: “where the federal government, in the exercise of its superior authority in this field, has enacted a complete scheme of regulation and has therein provided a standard for the registration of aliens, states cannot, inconsistently with the purpose of Congress, conflict or interfere with, curtail or complement, the federal law, or enforce additional or auxiliary regulations.” Hines, 312 U.S. at 66-67.

In Hines, the Court considered the preemptive effect of a precursor to the INA, but the Court’s language speaks in general terms about “a complete scheme of regulation,” — as to registration, documentation, and possession of proof thereof — which the INA certainly contains. Section 3’s state punishment for federal registration violations fits within the Supreme Court’s very broad description of proscribed state action in this area—which includes “complementing” and “enforcing additional or auxiliary regulations."

Paez next takes Arizona to school by citing cases where preemption does or does not apply and Paez is kind enough to teach Arizona why the results are reached.

The Critical Element Standard

Beginning with Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341 (2001) Paez notes that the Supreme Court held that the Food Drug and Cosmetics Act (FDCA) conflict preempted a state law fraud claim against defendants who allegedly made misrepresentations to the Food and Drug Administration (FDA). 531 U.S. at 343. The Court explained that private parties could not assert state-fraud on the FDA claims because, “the existence of the federal enactments is a critical element in their case.” The same principle applies here to S.B. 1070 Section 3, which makes the substantive INA registration requirements “a critical element” of the state law.

The Generality or Wider Application Standard

Paez discusses a line of cases where the State laws were not preempted by the Federal Statute. Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) where the Supreme Court held that an express preemption provision in the Federal Medical Device Amendments to the FDCA did not preclude a state common law negligence action against the manufacturer of an allegedly defective medical device. The State Law was predicated on a theory of negligence.

In Altria Group., Inc. v. Good, 129 S. Ct. 538 (2008) the Supreme Court held that the federal Labeling Act did not expressly preempt plaintiffs’ claims under the Maine Unfair Trade Practices Act alleging that Altria’s advertising of light cigarettes was fraudulent. The State Law was predicated on a theory of unfair business practices.

In Wyeth v. Levine, 129 S. Ct. 1187, 1194-95 (2009) the Supreme Court held that the FDA’s drug labeling judgments pursuant to the FDCA did not obstacle preempt State Law products liability claims. Obstacle preemption exists where under the circumstances of a particular case, the challenged state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.

Paez makes the distinction between the cases he cited and SB 1070. "All of the state laws at issue in these cases had significantly wider applications than the federal statutes that the Court found did not preempt them. Here, however, Section 3’s “generality” has no wider application than the INA."

Like Section 2(b), Section 3 fails because of its detrimental effect on foreign affairs, and its potential to lead to 50 different state immigration schemes piling on top of the federal scheme. Paez's majority opinion found that the inconceivable standard had been met, that the United States was likely to succeed on the merits of their case and that Judge Bolton did not abuse her discretion.

Part Three of this series will discuss Judge Paez's majority opinion and Section 5(c) of SB1070.

JERRY MORAN, LYNN JENKINS, & DAN BURTON HAVE GOT THE PREEMPTION DOCTRINE WRONG - USA v. ARIZONA, THE SB 1070 CASE

Kansas' Republican Senator-elect Jerry Moran, Second District Representative Lynn Jenkins, and Indiana's Fifth District Republican Dan Burton weighed in to the Arizona SB 1070 with an amicus curiae brief. They joined the Washington Legal Foundation (WLF), the Allied Educational Foundation (AEF), Concerned Citizens and Friends of Illegal Immigration Law Enforcement (CCFILE) [ § 501 (c) (3) organizations], and the National Border Patrol Council (NBPC) [ a § 501 (c) (5) organization.].

Their opening volley is that the federal government's failure to establish a "pervasive" scheme as to employing illegal immigrants means that preemption cannot apply. It is one of the weaker arguments I have read in the many briefs competing for the attention of the Ninth Circuit Court of Appeals.

Take another case which employs the "pervasive" standard, Gustafson v. City of Lake Angelus, 76 F.3d 778, which was decided by the Sixth Circuit Court of Appeal in 1996. This is an aviation noise case from Michigan. Explaining when a statute may be preemptive, the Sixth Circuit said:

"A statute may be construed as preemptive under three circumstances.... First, Congress, in enacting a federal statute, may express a clear intent to preempt state law. Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Common, 461 US. 190, 203 (1983). Second, absent express preemption, federal law may have an implied preemptive effect if Congress revealed this intent by "occupying the field" of regulation. Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248 (1984). There is implied preemption when there is a "scheme of federal regulation . . . so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it" or "because the Act of Congress may touch a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject." Fidelity Federal Savings & Loan Assn, 458 US. at 153. There is a third type of preemption when state law actually conflicts with federal law. Such conflict occurs where "compliance with both federal and state regulations is a physical impossibility," Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43 (1963), or where state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Hines v. Davidowitz, 312 U.S. 52, 67, (1941)."

The Hines case is the most important one to focus on because Judge Bolton relied on the case for as precedent and because it speaks directly to the topic which these Amici argue.

The current SB 1070 case on appeal to the Ninth Circuit, U.S.A. v. Arizona, is almost like an echo of the Hines case. The Commonwealth of Pennsylvania enacted an Alien Registration Act in 1939. That law required everyone over the age of 18 to "to register once each year; provide such information as is required by the statute, plus any:

other information and details "that the Department of Labor and Industry may direct; pay $1 as an annual registration fee; receive an alien identification card and carry it at all times; show the card whenever it may be demanded by any police officer or any agent of the Department of Labor and Industry; and exhibit the card as a condition precedent to registering a motor vehicle in his name or obtaining a license to operate one. The Department of Labor and Industry is charged with the duties of classifying the registrations for "the purpose of ready reference," and furnishing a copy of the classification to the Pennsylvania Motor Police. Nonexempt aliens who fail to register are subject to a fine of notmore than $100 or imprisonment for not more than 60 days, or both. For failure to carry an identification card or for failure to show it upon proper demand, the punishment is a fine of not more than $10, or imprisonment for not more than 10 days, or both.

In short, this statute was an earlier version of Arizona's papers please SB 1070 law.

What Moran, Jenkins, Burton, and their tax-exempt cohorts fail to recognize in their brief is that the Constitution gives the Congress absolute authority to regulate in the arena of immigration. Had their learned counsel fully read Hines, instead of picking and ignoring selected text, perhaps they wouldn't have found themselves out on the proverbial limb. What they want is for the Ninth Circuit to agree that this case is about an area where either the federal government or the states may regulate and ignore that silly old Constitution.

The Hines court went on to say:

Our conclusion is that appellee is correct in his contention that the power to restrict, limit, regulate, and register aliens as a distinct group is not an equal and continuously existing concurrent power of state and nation, but that whatever power a state may have is subordinate to supreme national law. We proceed therefore to an examination of Congressional enactments to ascertain whether or not Congress has acted in such manner that its action should preclude enforcement of Pennsylvania's law.

In Hines the Supreme Court found that Pennsylvania Act could not be enforced. In finding that the United States is likely to succeed on the merits of the case, Judge Bolton said, in part, that SB 1070 "is likely to burden legally-present aliens, in contravention of the Supreme Court’s directive in Hines that aliens not be subject to “the possibility of inquisitorial practices and police surveillance.” [citing Hines.] ... Further, the number of requests that will emanate from Arizona as a result of determining the status of every arrestee is likely to impermissibly burden federal resources and redirect federal agencies away from the priorities they have established."

Judge Bolton added the following footnote 7:

The problems associated with burdening federal resources are even more acute when considered in light of other state laws similar to this provision. (See Pl.’s Mot. at 31-32 (citing to a newspaper article stating that at least 18 other states are considering parallel legislation).); see also North Dakota v. United States, 495 U.S. 423, 458-59 (1990) (Brennan, J., concurring in plurality opinion in part and dissenting in part) (collecting cases where burden of state regulation on federal government was amplified by aggregate potential of multiple states following suit).

While it is clear that the Constitution gives the federal government sole authority over immigration Congress may invite the assistance of the States in the enforcement of those laws. That is essentially the argument made by SB 1070's author Secretary of State-elect Kris Kobach. What Kobach and the SB 1070 brain trust overlooked was the permissive nature of that cooperation. In a classic case of being offered an inch and taking a mile the Kobachian version is that when Congress opened the door to the States then all bets were off. You'd think a guy like Kobach would have a greater understanding of Constitutional Law than to come up with that goofy notion.

Gustafson v. City of Lake Angelus was a different sort of case from either Hines or U.S.A. v. Arizona. The latter two cases directly involved an area which the Constitution says the federal government has supreme control, but in Gustafson the Sixth Circuit said: "[W]e believe the United States' sovereign regulation of the airspace over the United States and the regulation of aircraft in flight is distinguishable from the regulation of the designation of plane landing sites, which involves local control of land (or, in the present case, water) use."

There are three ways in which the preemption doctrine can apply. First is the case of express preemptions, where " . . . Congressional intent to preempt must be unambiguous and cannot be inferred from (the) mere fact that (the) federal statute is detailed and complex or because state legislation touches an area of predominantly national concern." Pacific Legal Foundation v. State Energy Resources Conservation and Development Commission, (9th Cir. 1981) 659 F.2d 903.

Second is the case of implied preemptions, where ". . . When a federal statute does not explicitly prohibit state regulation in the same field, congressional intent to preempt may be inferred from nature of federal regulatory scheme or from subject matter being regulated . . . (Pacific Legal Foundation).

" . . in a preemption test the fundamental inquiry is whether local legislation will conflict with national policy . . .; if the activity is of predominantly local interest then state action may be permissible, but if a uniform national rule is necessary then federal preemption will be implied." California v. Zook, (1949) 336 U.S. 725, 728.

The third case is where the state law conflicts with federal law. This is where the instant case belongs. " . . . a conflict between state and federal law . . may arise when the state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Hines v. Davidowitz, (1941) 312 U.S. 52, 67, as cited in Ogden Environmental Services v. City of San Diego, 88 Daily Journal D.A.R. 15264, 15266-15267.

" . . . Even if Congress did not intend to preempt all state legislation in a given field, a state law must be held invalid to (the) extent that it actually conflicts with federal law . . . (Pacific Legal Foundation, supra.).

" . . . State regulations are preempted when a conflict would arise if compliance with both federal and state regulations were impossible or if state regulations stood as an obstacle to achievement of congressional objectives . . . (Pacific Legal Foundation, supra.).

Moran, Jenkins, and Burton are trying to lead the Ninth Circuit down the wrong path, that of express preemption. They seem unable to reconcile themselves to the fact that the Constitution places this case in the third area, that of conflicts.

They will not win their point in an appellate court. The question remains if in the 112th Congress they will try to grant the States the power to regulate in the field of immigration. There is no way the President would sign a bill like that. It would, however, set up another interesting legal battle, the intentional abdication of federal responsibility by Congress. In other words, can Congress, by statute, let the States regulate where the Constitution says the States may not regulate?

Yes, Virginia, we seem to be returning to the Articles of Confederation. And no, Virginia, they didn't work so well before.

RALPH HIPP WANTS TO KNOW WHAT'S UP WITH KANSAS DEMOCRATS

WIBW's long time television anchor Ralph Hipp blogs an insightful question "What's up with Kansas Democrats?" Well, Ralph, perhaps the most active Democratic candidates are Raj Goyle out of Wichita and Stephene Moore hailing from Johnson County.

Raj Goyle, as of July 14th, has $1,255,403, while spending $515,531, leaving a cool $739, 873 for the home stretch according to the Center for Responsive Politics' OpenSecrets.Org.

Stephene Moore, wife of retiring Representative Dennis Moore, as of July 14th, had raised $839,578, spent $389,638, and has $509,937 left for the final surge according to the Center for Responsive Politics' OpenSecrets.Org.

Former Salina Mayor Alan Jilka is the Democratic candidate in the big First Congressional District. As of July 14th his campaign raised $744,107, spent $592,190, and held on to $251,233 according to the Center for Responsive Politics'OpenSecrets.Org.

Girard native Cheryl Hudspeth has pledged to take no corporate cash in her quest for Congress. It shows. According to the Center for Responsive Politics' OpenSecrets.Org. she is not on the radar as having raised even a single cent. Her opponent, one of the worst Representatives in history, has taken in more than a million dollars. Maybe we don't need a Constitutional Amendment to overturn Citizens United and free us from the undue influence of corporate cash. Maybe we need voters who figure out that the candidate on the corporate gravy train is working for the corporate interest and not we the people.

Senate Candidate Lisa Johnston, as of June 30th, had raised $10,627, she spent $4,530, and had $6,096 on hand according to the Center for Responsive Politics' OpenSecrets.Org. The same source says her opponent, Jerry Moran, raised, as of July 14th, $2,749,244 while having spent $4,497,168, and he claims to have $795,015 left over.  Now that's some creative accounting.  I don't think a self-proclaimed fiscal conservative with that kind of cash mismanagement is what Kansas is looking for in a United States Senator.

Chris Biggs has pledged to be a fulltime Secretary of State for Kansas. The Republican nominee, Kris Kobach, intends to teach law at UMKC and travel the country pushing his odd legal theories threatening Latinos. Recently Kobach claimed he could draft legislation undermining the Fourteenth Amendment that would pass the strict scrutiny of the Courts. That's nonsense. He should not be allowed to teach law. We help can end intellectual fraud by voting for Chris Biggs.

Attorney General Steve Six hit a homerun with his campaign by being an effective Attorney General dedicated to fighting sexual predators with a special task force. He is using new technology scouring the internet to track the monsters who lure children for perverse purposes.

Our candidate for State Treasurer is State Treasurer Dennis McKinney. He has responsibly taken care of his duties overseeing more than $20.6 billion this year. He administers the Learning Quest program that lets Kansans invest for the college expenses of their children. He has overseen the return of more than $11.3 million to their rightful owners; money in old bank accounts, insurance policies, and stocks.

Tom Holland is going to the debate. Sorry Ralph.  And why isn't Ralph Hipp digging into Sam Brownback's membership in a power grabbing cult called "the Family" where he and others got sweetheart deals on rent.  Brownback lived at the Family's C-Street complex with other notorious politicians.  Apparently in their cult the creeds and comandments of mainstream religion do not apply to members.  A number of sexual and legal scandals sprung from the C-Street facility.  And what of Brownback's lackluster performance in the Senate.  The most recent debacle is Senate Republicans blocking the Small Business tax break.

Ralph Hipp's question remains insightful because there are structural problems with both parties in Kansas. In most other states if a person wants to know who their committeeman or committeewoman is that information is readily available. Many states include that information in reports from their Secretary of State. Kansas does not. Some states, and some counties, rely on the party organization to let folk know who is who in their party and how to contact them. Some Kansas county party organizations do this on their own.

It is not enough. Kansas Democrats need to be more transparent. We fail to get the vote out because we are not doing enough in each and every Kansas precinct to know our neighbors, listen to their concerns, and tell them about our candidates. We can do better.

IN THE MATTER OF KAREN GOLINSKI, ET UX, AN UNFOLDING SAGA OF CIVIL RIGHTS, SAME SEX MARRIAGE, & FEDERAL EMPLOYEE BENEFITS.

A staff attorney for the Ninth Circuit wants health insurance for her wife

Once upon a time I was employed in the land title business. That is the industry which pays particular detail to the history of land transactions. Examining title to real property involves researching deeds, mortgages, deeds of trust, judgments, lawsuits, tax liens, mechanic liens, maps, plats, and surveys.

Keeping track of who is who requires a system of classification. How did the deed grant the property to the Buyer. That is another way of saying what type of legal relationship is being recognized. There are tenants in common with or without the right of survivorship. There are joint tenants with the right of survivorship, which is the way many married persons take title. Some jurisdictions recognize a tenancy called the entireties, an estate reserved exclusively for married couples. Unmarried women taking title were often referred to by the  expression feme sole. Today, especially in tenancies in common, unmarried persons are referred to as a single man, or a single woman. Why not just say a single person?

An expression we seldom see, except in the dusty files from gone by centuries, is et ux, the abbreviation of the Latin term et uxor, which means "and wife." If you happen across a deed using the term feme sole then you may run across deeds to a certain man et ux. Women in America were treated as personal property when they married. The woman's name on the deed was superfluous as all the legal right and interest to the title ran to the husband. Essentially, women lost their rights when they wed.  The legal doctrine by which husbands subsumed the legal rights of their wives was called coverture.

Since et ux is so seldom used to reference wife in contemporary parlance my eye was immediately drawn to In the Matter of Karen Golinski, et ux, a case being reported on the home page of the Ninth Circuit Court of Appeals.

Federal employee Karen Golinski has a wife. Ms. Golinski has been denied a benefit of federal employment, health insurance for her wife, because she is married to a woman. The Chief Judge of the Ninth Circuit, Alex Kozinski, is handling the case. Ms. Golinski is a staff attorney working for the Ninth Circuit Court of Appeals.

Chief Judge Alex Kozinski of the Ninth Circuit

Judge Kozinski has already ruled that denial of the health insurance benefits violates the Ninth Circuit Court of Appeals guarantee of equal employment opportunity. That order said:

The availability of health insurance for oneself and one’s family is a valuable benefit of employment, and denial of such a benefit on account of sex and sexual orientation violates the terms of the EEO plan that covers Golinski." See, Amended Order, November 19, 2009.

The Director of the Administrative Office of the United States Courts denied Ms. Golinski claim because he considered the Defense of Marriage Act (DOMA) 1 U.S.C. § 7 prohibits identifying a spouse as a person of the same gender. Since Ms. Golinski's wife was not her spouse under federal law, she was not entitled to add her wife under the definition of family required under 5 U.S.C. § 8903(1), which is part of the Federal Employee Health Benefits Act (FEHBA).

Judge Kozinski found the Director's reading of the statutes was not the only plausible reading of FEHBA. Kozinski relied upon a broader construction of the FEHBA which permits the Office of Personnel Management (OPM) to contract for coverage exceeding the minimum statutory requirements. This allows OPM to contract for family coverage which meets the definition of family under state law, but would not meet the definition imposed by DOMA. Kozinski says:

Adopting the broader construction of the statute not only harmonizes the statutory scheme with our EEO plan, it avoids difficult constitutional issues. If I were to interpret the FEHBA as excluding same-sex spouses, I would first have to decide whether such an exclusion furthers a legitimate governmental end. Because mere moral disapproval of homosexual conduct isn’t such an end, the answer to this question is at least doubtful.

Kozinski supports his decision by reliance on Romer v. Evans, 241 U.S. 620 (1996). In that case the Supreme Court said that an amendment to the Colorado constitution prohibiting civil rights protections for gays and lesbians contravened the United States Constitution.

Describing the type of inquiry required to sift through the facts and weigh the circumstances to determine constitutionality of the involved statutes, Kozinski relied on the case of Reitman v. Mulkey, 387 U.S. 369 (1967).  In that case a racially neutral housing law in California was struck down because on the basis of the context and circumstances surrounding the statute's enactment it had the design and intent of weakening the state's anti-discrimination laws.

Note to Kris Kobach, what say you to the context and circumstances surrounding enactment of SB 1070?

Back to Golinski. Judge Kozinski stares into the process of ruling DOMA unconstitutional and does what all good jurists do. Judge Kozinski avoided the constitutional question and harmonized the Defense of Marriage Act (DOMA), 1 U.S.C. § 7; the statutes creating the benefit program at issue, the Federal Employees Health Benefits Program (FEHBP), 5 U.S.C. §§ 8901 et seq.; and the Ninth Circuit Court of Appeals' commitment to equal employment opportunity.

Judge Kozinski's order in this case set forth the following six provisions.

1. 
   
   This matter is referred to the Appellate Commissioner for a hearing on Ms. Golinski’s claim under the Back Pay Act. Within 70 days, he shall submit a report and recommendations on the factual issues listed above.
2. 
   
   Within 30 days, the Administrative Office of the United States Courts shall re-submit Ms. Golinski’s Health Benefits Election form 2809 to her designated insurer, the Blue Cross and Blue Shield Service Benefit Plan. The AO shall process any future benefit forms without regard to the sex of the listed spouse.
3. 
   
   Within 30 days, the Office of Personnel Management shall rescind its guidance or directive to the Blue Cross and Blue Shield Service Benefit Plan and any other plan that Ms. Golinski’s wife is not eligible to be enrolled as her spouse under the terms of the Federal Employees Health Benefits Program because of her sex or sexual orientation, and that the plans would violate their contracts with OPM by enrolling Ms. Golinski’s wife as a beneficiary. 
4. 
   
   The Office of Personnel Management shall cease at once its interference with the jurisdiction of this tribunal. Specifically, OPM shall not advise Ms. Golinski’s health plan, the Blue Cross and Blue Shield Service Benefit Plan, that providing coverage for Ms. Golinski’s wife violates DOMA or any other federal law. Nor shall OPM interfere in any way with the delivery of health benefits to Ms. Golinski’s wife on the basis of her sex or sexual orientation.
5. 
   
   The Blue Cross and Blue Shield Service Benefit Plan shall enroll Ms. Golinski’s wife within 30 days of receipt of the appropriate forms from the Administrative Office of the United States Courts without regard to her sex or sexual orientation.
6. 
   
   The Judge authorized Ms. Golinski to take appropriate action to secure compliance with this order, such as by petition for enforcement or mandamus. I trust, however, that such action will not be necessary.

 The Judge's order was appealed and Ms. Golinski filed suit. See, Golinski v. U.S. Office of Personnel Management, No. 10-cv-00257-SBA (N.D. Cal. filed Jan. 20, 2010).

The parties to the appeal filed a motion to stay the appeal pending resolution of Federal District Court Case. Judge Kozinski granted that motion. Stay tuned this case is worth watching.

Preliminary Injunction Issued Against Arizona's SB 1070

Federal District Judge Susan Bolton

Federal District Court Susan Bolton is hearing the matter of the United States v. Arizona, et al. Today she blocked key portions of Arizona's "papers please" SB 1070 law written by Kansas' candidate for Secretary of State Kris Kobach. On Kansas City's local FOX affiliate, WDAF, Kobach downplays the significance of Judge Bolton's ruling. He should not.

Preliminary Injunctions are not issued at the drop of a hat. They belong to a class of Equitable Remedies known as Injunctions. A Preliminary Injunction does not always blossom into a Permanent Injunction. Neither is overturning a Preliminary Injunction a slam-dunk.

Four elements must be established before a court will issue a Preliminary Injunction. First the Plaintiff must show a reasonable likelihood that they will prevail on the merits of the case. Second, irreparable harm will occur absent the order. Third is a balancing test where the judge must find that less harm will accrue to the Defendants if the Preliminary Injunction is issued compared to more harm accruing to the Plaintiffs if the Preliminary Injunction does not issue. Finally, that the public interest weighs in favor of the Plaintiff.

Here is what early reports are saying about Judge Bolton's ruling. The New York Times is reporting:

The portion of the law that requires an officer make a reasonable attempt to determine the immigration status of a person stopped, detained or arrested if there’s reasonable suspicion they’re in the country illegally.

The Tucson Citizen gives a more detailed report of Judge Bolton's actions, reporting that these key features of SB 1070 will not be going into effect next week:

The portion of the law that requires an officer make a reasonable attempt to determine the immigration status of a person stopped, detained or arrested if there’s reasonable suspicion they’re in the country illegally.

• The portion that creates a crime of failure to apply for or carry “alien-registration papers.”

• The portion that makes it a crime for illegal immigrants to solicit, apply for or perform work. (This does not include the section on day laborers.)

• The portion that allows for a warrantless arrest of a person where there is probable cause to believe they have committed a public offense that makes them removable from the United States.

The Tucson Citizen says other parts of SB 1070 will not be enjoined:

The ruling says that law enforcement still must enforce federal immigration laws to the fullest extent of the law when SB 1070 goes into effect at 12:01 a.m. Thursday. Individuals will still be able to sue an agency if they adopt a policy that restricts such enforcement.

Bolton did not halt the part of the law that creates misdemeanors crimes for harboring and transporting illegal immigrants.

Bolton’s ruling followed hearings on three of seven federal lawsuits challenging SB 1070. Plaintiffs include the U.S. Department of Justice, the American Civil Liberties Union, Phoenix and Tucson police officers, municipalities, illegal immigrants and non-profit groups.

She denied legal requests by Gov. Jan Brewer, Maricopa County Sheriff Joe Arpaio and several other defendants seeking to have the lawsuits dismissed because, they argued, the plaintiffs did not prove that they would be harmed by the law if it went into effect.

Judge Bolton did not enjoin §1 of SB 1070, providing for the intent of the bill; Portions of §2 of SB 1070.

From Judge Bolton's Order, these are the enjoined sections:

Applying the proper legal standards based upon well-established precedent, the Court finds that the United States is likely to succeed on the merits in showing that the following Sections of S.B. 1070 are preempted by federal law:

Portion of Section 2 of S.B. 1070 A.R.S. § 11-1051(B): requiring that an officer make a reasonable attempt to determine the immigration status of a person stopped, detained or arrested if there is a reasonable suspicion that the person is unlawfully present in the United States, and requiring verification of the immigration status of any person arrested prior to releasing that person

Section 3 of S.B. 1070 A.R.S. § 13-1509: creating a crime for the failure to apply for or carry alien registration papers Portion of Section 5 of S.B. 1070 A.R.S. § 13-2928(C): creating a crime for an unauthorized alien to solicit, apply for, or perform work Section 6 of S.B. 1070 A.R.S. § 13-3883(A)(5): authorizing the warrantless arrest of a person where there is probable cause to believe the person has committed a public offense that makes the person removable from the United States

The Court also finds that the United States is likely to suffer irreparable harm if the Court does not preliminarily enjoin enforcement of these Sections of S.B. 1070 and that the balance of equities tips in the United States’ favor considering the public interest. The Court therefore issues a preliminary injunction enjoining the enforcement of the portion of Section 2 creating

A.R.S. § 11-1051(B), Section 3 creating A.R.S. § 13-1509, the portion of Section 5 creating A.R.S. § 13-2928(C), and Section 6 creating A.R.S. § 13-3883(A)(5).

Judge Bolton's Order may be viewed in whole at: http://www.azd.uscourts.gov/azd/courtinfo.nsf/983700DFEE44B56B0725776E005D6CCB/$file/10-1413-87.pdf?openelement

The Preliminary Injunction has the effect of freezing the status quo, the enjoined parts of SB 1070 will not go into effect. Expect a full trial on the merits of the case with the United States asking for a Permanent Injunction.

This case is far from over.

Radical Hospitality, SB 1070, & Kris Kobach

The Kansas City Star published the following letter to the editor in their Wednesday, July 28th paper.  http://www.kansascity.com/2010/07/27/2112447/letters-july-28.html

Kobach cover-up

Kris Kobach isn’t the first politician to employ racially neutral laws that violate the equal protection clause of the Fourteenth Amendment to the Constitution. He reminds me of former Mississippi governor J.P. Coleman.

Coleman, like Kobach, was a bright legal technician who drafted his policies in racially-neutral terms in hopes of thwarting the civil rights of African-Americans. Jim Crow laws were often written in racially-neutral terms. Despite Kobach’s protestations, I doubt S.B. 1070 will survive legal challenges based on either the supremacy clause or the equal protection clause.

My chief complaint against Kobach’s legislation is not based on constitutional theory. It violates a spiritual value known as “radical hospitality,” which calls for extending welcome beyond the boundaries, beyond places of worship, into every corner of society.

I am reminded that but for the grace of God, any of us could be in the place of economic refugees. American citizens of Hispanic descent should not be burdened by Kobach’s law. Kansas can do better than electing Kris Kobach.

Michael Box
Osawatomie

For reference purposes, I wrote that letter, J.P. Coleman was a Federal Judge and Mississippi Governor, and Kris Kobach is running for Kansas' Secretary of State.  Michigan's Democratic Representative to Congress once referred to Coleman as the "thinking man's segregationist."  Here's what these folks look like.

J.P. Coleman

John Conyers

Kris Kobach

Those who support Arizona's SB 1070 claim that it mirrors America's immigration law.  While the Arizona statute parrots federal immigration law, it is significantly different in that the stated purpose of the Arizona statute is attrition through enforcement.

Kris Kobach's statute makes an attempt to usurp authority granted to the Congress by the Constitution.  What Kobach didn't think of, or fails to mention, is that the Congress has the authority to enact laws to enforce federal power.  Immigration is a federal power.

U.S. Constitution Article I §8 cl. 18

The Congress shall have Power - To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Kobach would have the States exercise the elastic nature of the Necessary and Proper Clause in contravention of the Constitution of the United States.

Much has been written and much is being practiced when it comes to Radical Hospitality.  A fine distillation of this core spiritual value is found in a short poem by Edwin Markham.

Outwitted

He drew a circle that shut me out —
Heretic, rebel, a thing to flout.
But Love and I had the wit to win:
We drew a circle that took him in!

THE CASE AGAINST LYNN JENKINS CHAPTER 27 - SHE'S AGAINST FAIRNESS IN POLITICAL SPEECH (MEANING ONLY THE MEGA RICH NEED PARTICIPATE!)

This is Lynn Jenkins, she doesn't represent us, and doesn't like the Fairness Doctrine

The F.C.C. issues licenses to commercial broadcasters to use particular band segments or frequencies. These license holders do not own the airwaves. They hold them in trust for the public.

In 1949, in an attempt to dictate fairness in the use of the airwaves, the F.C.C. promulgated rules known as the Fairness Doctrine. This required licensees to present controversial issues of public importance and to do so in a manner that was, in the F.C.C's view, honest, equitable and balanced.

In 1981 the F.C.C. refined the Fairness Doctrine, imposing on licensees two conditions. First was the duty to provide adequate coverage to public issues. Secondly licensees were under a duty to ensure that coverage must be fair in reflecting opposing views.

In the case of Red Lion Broadcasting v. F.C.C. Red Lion Broadcasting challenged the application of the fairness doctrine with respect to a particular broadcast. The companion case United States v. Radio Television News Directors Association, challenged the fairness doctrine's requirements concerning broadcasts.  "Broadcast" is an F.C.C. term of art defining radio or television transmissions intended to be sent to and received by the general public.  Broadcasts are limited to certain frequencies.

The Supreme Court rendered a unanimous opinion delivered by Associate Justice Byron "Whizzer" White. Associate Justice Douglas did not participate. Associate Justice White said:

In view of the scarcity of broadcast frequencies, the Government's role in allocating those frequencies, and the legitimate claims of those unable without governmental assistance to gain access to those frequencies for expression of their views, we hold the regulations and ruling at issue here are both authorized by statute and constitutional.

Always read the footnotes, the Court's final footnote, footnote 28 is instructive. In sidestepping questions the Court did not need to reach they said:

[ Footnote 28] We need not deal with the argument that even if there is no longer a technological scarcity of frequencies limiting the number of broadcasters, there nevertheless is an economic scarcity in the sense that the Commission could or does limit entry to the broadcasting market on economic grounds and license no more stations than the market will support. Hence, it is said, the fairness doctrine or its equivalent is essential to satisfy the claims of those excluded and of the public generally. A related argument, which we also put aside, is that quite apart from scarcity of frequencies, technological or economic, Congress does not abridge freedom of speech or press by legislation directly or indirectly multiplying the voices and views presented to the public through time sharing, fairness doctrines, or other devices which limit or dissipate the power of those who sit astride the channels of communication with the general public. Cf. Citizen Publishing Co. v. United States.

The Fairness Doctrine was repealed in 1987 when President Reagan staffed the F.C.C. with Commissioners committed to deregulation. Red Lion provides authority for either a newly staffed F.C.C. or, preferably, the Congress to reestablish the doctrine.  Has anything good ever come of Republican deregulation?

Repeal of the Fairness Doctrine by Reagan appointees led to the demise of its corollary, the Personal Attack Rule. Additionally, the Zapple Doctrine, an additional interpretation of the Fairness Doctrine that required broadcasters to provide supporters of a candidate with an opportunity to respond when the broadcaster has allowed his or her opponent’s supporters to use or purchase time on the station, is presumably no longer enforced by the Commission.

All of that comes as good news to F.A.I.R.'s resident thinker, Kris Kobach. He is running for Secretary of State in Kansas and working the airwaves on a Kansas City talk radio station. Fortunately for Kobach the appearance of impropriety standard only applies to his actions as an attorney, not as a political candidate.

Candidate Kris Kobach appears to have a free forum for espousing his views, that's fair?

The Supreme Court's decision in Citizens United v. F.C.C. overruled the case  permitting limiting corporate cash in political speech, Austin v. Michigan Chamber of Congress. That means that massive amounts of corporate cash will be infused into America's electoral process, effectively drowning out the voices of the people.

Now Lynn Jenkins thinks that radio station owners own the airwaves and ignores that F.C.C. license holders only have the privilege to use those airwaves in trust. That is an essential holding in Red Lion Broadcasting v. F.C.C., "It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount." 

Lynn Jenkins co-sponsored H.R. 226, an Act To prevent the Federal Communications Commission from repromulgating the fairness doctrine.

The text of that bill reads:

"Notwithstanding section 303 or any other provision of this Act or any other Act authorizing the Commission to prescribe rules, regulations, policies, doctrines, standards, or other requirements, the Commission shall not have the authority to prescribe any rule, regulation, policy, doctrine, standard, or other requirement that has the purpose or effect of reinstating or repromulgating (in whole or in part) the requirement that broadcasters present opposing viewpoints on controversial issues of public importance, commonly referred to as the `Fairness Doctrine', as repealed in General Fairness Doctrine Obligations of Broadcast Licensees, 50 Fed. Reg. 35418 (1985)."

If Lynn Jenkins had her way you'd only be allowed to be heard if you had FAT CAT RESOURCES.

I've said it before and I'll say it again, CORPORATIONS DON'T HAVE A SOUL TO SAVE OR A BUTT TO KICK AND THEY SHOULD NOT BE GIVEN VOICE IN OUR ELECTORAL PROCESS. IT IS GOVERNMENT OF THE PEOPLE, NOT OF THE CORPORATIONS, FOR THE CORPORATIONS, AND BY THE CORPORATIONS.

We need a Constitutional Amendment permitting only registered voters to engage in political speech.

KRIS KOBACH SPEAKS GOBBLEDYGOOK

Kris Kobach, purveyour of gobbledygook 

Democrats need to start debunking the intellectual fraud espoused by F.A.I.R., Kris Kobach, and Arizona's infamous SB 1070 papers please law. Kobach is apparently the brain trust behind F.A.I.R. and their puppet Arizona State Senator Russell Pearce. Pearce, apparently with Kobach's counsel now plans to introduce another Draconian bill, this time denying the so-called Anchor Babies born in Arizona a birth certificate.

Apparently Kobach's big argument is that those Arizona illegal immigrants and their children are not "under the jurisdiction" of the United States. The first case they talk of was In re Thenault, see this blog's posting for May 27th. Here Kobach is mixing his applesauce with chicken manure. Thenault speaks to the citizenship of children born to parents of a foreign power who are in the diplomatic service of their country.

Both John McCain and Barrack Obama are American Citizens

This rule also applies to children whose parents are in the armed forces of their country, kids like that pesky John McCain, who was born in Panama, yet is not Panamanian but American!

Thenault has diddly squat to do with persons not in the employ and or service of their country who come to America and produce a child. It does not follow that either these so-called Anchor Babies or their foreign national parents are beyond the jurisdiction of the United States or any of the Several States of the Union.

How is that Kris Kobach and his puppet Russell Pearce believe that illegal aliens are not subject to the jurisdiction of the United States or the State of Arizona? If they are not subject to American and Arizonan jurisdiction then SB 1070 and their forthcoming nightmare Anchor Babies Bill would be null and void ab initio. That's because if they are not under American jurisdiction they are not subject to our laws and all the laws Kobach wants passed wouldn't apply. Kobach speaks gobbledgook.

Kris Kobach should know that jurisdiction is not just some word about which politicians gather for demagogue parties. Jurisdiction is a term of art in the law. Jurisdiction means the place where the law speaks. In the United States our law speaks to everyone located within our boundaries, with the notable exception of diplomats, who are present in the U.S.A, and possess diplomatic immunity, that's called Territorial Jurisdiction.

The part where the law applies to every person found here, or with significant contacts here, is called Personal Jurisdiction. The Court's have Subject Matter Jurisdiction over cases properly brought before them.  A case can even go to court where no person is involved. The government can sue a car, or a plane, or a tract of land using In Rem Jurisdiction.  Kobach shouldn't have to be tutored on jurisdiction, he is supposed to be a law professor!

So far as SB 1070 and the forthcoming Anchor Babies Bill, Kobach & company's contention that illegal aliens and or their Anchor Babies are not subject to the jurisdiction of the United States or of the Several States of the Union is absurd. Here Kobach & company state no valid legal theory, it's all gobbledygook.

It gets worse. Russell Pearce, and maybe I heard Tom Tancredo say this too, trying to explain their Wing Nut Legal Theory said it took an act of Congress to establish citizenship of the native American peoples.

CAUTION: DO NOT EAT THEIR APPLESAUCE!

What the Wing Nut Law Department forgot was the basic difference between American Indians and Illegal Aliens. That's so like when they tried to blur the distinction between the children born to diplomats and children born to illegal aliens. But it gets worse.

American Indians, according to Chief Justice John Marshall, do not belong to a foreign sovereign state. They are sui generis, a class unto themselves. Marshall, in Cherokee Nation v. Georgia, called them "domestic dependent" nations. That case was decided in 1831. American Indians are not coming from another foreign country. They were not considered citizens of the United States, or of any other nation.

So the Snyder Act, also known as the Indian Citizenship Act of 1924 came about to define the legal relationship of Native Americans with the United States of America. Prior to the Snyder Act American Indians were stateless persons. The illegal aliens subject to Kobach's suspect laws are citizens of Mexico, or Costa Rica, or Panama, or any of the nations south of the American border. They are not stateless persons.

It is so easy in difficult economic times to scapegoat persons who are essentially economic refugees.  Doing so runs counter to our core values of radical hospitality and an expansive future.  Each time America has accepted waves of immigrants America has gotten the best of the bargain.  This wave of immigration is no different.

We need Comprehensive Immigration Reform we do not need blowhards like Kris Kobach.   We can do better than advance Kobach's agenda of intellectual fraud.