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By Gregory Taggart, February 11, 2011 9:35 pm

Marisa Taylor of McClatchy Newspapers writes,

The Obama administration’s Justice Department has asserted that the FBI can obtain telephone records of international calls made from the U.S. without any formal legal process or court oversight, according to a document obtained by McClatchy.

That assertion was revealed — perhaps inadvertently — by the department in its response to a McClatchy request for a copy of a secret Justice Department memo.

Critics say the legal position is flawed and creates a potential loophole that could lead to a repeat of FBI abuses that were supposed to have been stopped in 2006.

The controversy over the telephone records is a legacy of the Bush administration’s war on terror. Critics say the Obama administration appears to be continuing many of the most controversial tactics of that strategy, including the assertion of sweeping executive powers.

I’ll go with the meme: Change? I’m sure we’ll hear a lot about this.

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By Gregory Taggart, February 10, 2011 6:16 pm

And three safety mechanisms is too safe.

Hat Tip Instapundit.

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By Gregory Taggart, February 10, 2011 8:58 am

Is the time ripe for a Mormon to be President, or will religion get in Mitt Romney’s or Jon Huntsman Jr.’s way? Sally Quinn asks the question in On Belief, her religious bailiwick at The Washington Post. Eight panelists, including the likes of Barry Lynn who writes,

There really is only one question that needs to be answered: can you faithfully execute the laws of the United States or is there some religious view you hold that you believe transcends that duty?

Which begs the question: Would he, or anyone else, accept the answer, “Yes, I can,” and move on? Or would that question actually be an open door through which the inquisitor would parade his even deeper-held beliefs that “there ain’t no way a Mormon President won’t do the bidding of his (or her) hierarchical superiors in Salt Lake!”

I’ll be back for further comment on this subject.

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By Gregory Taggart, February 7, 2011 12:00 pm

Adam Liptak struggles to find a distinction between corporations in general and the so-called institutional media (which are usually corporations) in particular, in his piece on Citizens United and campaign finance reform. Of course, the is no distinction, or there shouldn’t be.

But that’s beside the point, the point at which the government lost the case. Liptak hints at it in his story when he writes,

Consider this telling exchange between Justice Samuel A. Alito Jr. and a lawyer for the Obama administration at the first of two arguments in Citizens United. The lawyer, Malcolm L. Stewart, said Congress had the power to regulate corporate speech about political candidates under the First Amendment.

“Most publishers are corporations,” Justice Alito said. “And a publisher that is a corporation could be prohibited from selling a book?”

It was a hypothetical question, but it cut to the core of the meaning of the press clause of the First Amendment. There was a lot of back and forth, and other justices jumped in. In the end, though, Mr. Stewart gave a candid answer.

“We could prohibit the publication of the book,” he said.

But Stewart was not talking about just any book with his answer. No, he was responding to a very specific question about a very specific kind of book.

I was out for a run and listening on my MP3 player to the exchange between Stewart and various Justices on this point (courtesy of the Oyez Project), and I remember saying to myself, “he [Stewart] just lost this case.” And this is where he lost it:

Justice Roberts: If it’s a 500-page book, and at the end it says, and so vote for X, the government could ban that?

Mr. Stewart: Well, if it says vote for X, it would be express advocacy and it would be covered by pre-existing Federal Election Campaign act provisions . . . we could prohibit the publication of the book using corporate treasury funds.

So, did you get that? One request that you vote for candidate X, at the end of a very long book, and zippo facto manulo, the government could ban that 500-page book published by a corporation under pre-Citizens United law, at least according to the government in the first oral argument. No wonder the Court ruled the way it did. No wonder, at least to me.

Liptak is right, however. The government backed away from that argument in reargument. Solicitor General Elena Kagan argued the case this time around, and she went nowhere near Stewart’s bold claim. But the damage was done, and in my view, the case had already been lost because, fortunately, five Justices couldn’t see their way clear to ban a 500-page book because of one pitch at the very end, a simple plea to “vote for X.”

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By Gregory Taggart, February 5, 2011 11:13 am

Elder Dallin H. Oaks recently gave a speech on religious freedom at Chapman University School of Law. He also gave an interview on the subject. Both are worthy–very worthy–of our attention.

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A little background on Elder Oaks, currently an Apostle in The Church of Jesus Christ of Latter-day Saints. Elder Oaks graduated from the University of Chicago School of Law; clerked for Earl Warren, then Chief Justice of the Supreme Court; taught at Chicago; and served as interim dean of that law school, as president of BYU (where he also oversaw the establishment of the J.Reuben Clark Law School), and finally a justice on the Utah Supreme Court. He was considered for the U.S. Supreme Court by both President Ford and Reagan.

In his speech, Oaks gives a number of troubling examples of what he is concerned about and why he is calling for religions to join together in protecting religion’s place in the public square:

In New Mexico, the state’s Human Rights Commission held that a photographer who had declined on religious grounds to photograph a same-sex commitment ceremony had engaged in impermissible conduct and must pay over $6,000 attorney’s fees to the same-sex couple. A state judge upheld the order to pay. In New Jersey, the United Methodist Church was investigated and penalized under state anti-discrimination law for denying same-sex couples access to a church-owned pavilion for their civil-union ceremonies.  A federal court refused to give relief from the state penalties. Professors at state universities in Illinois and Wisconsin were fired or disciplined for expressing personal convictions that homosexual behavior is sinful. Candidates for masters’ degrees in counseling in Georgia and Michigan universities were penalized or dismissed from programs for their religious views about the wrongfulness of homosexual relations. A Los Angeles policeman claimed he was demoted after he spoke against the wrongfulness of homosexual conduct in the church where he is a lay pastor. The Catholic Church’s difficulties with adoption services and the Boy Scouts’ challenges in various locations are too well known to require further comment. (see sources in transcript)

As Elder Oaks made his case that we–religious believers–need to stand up and speak out, I was particularly impressed by his quotation of his fellow Apostle, the late Neal A. Maxwell:

My esteemed fellow Apostle, Elder Neal A. Maxwell, asked:

“[H]ow can a society set priorities if there are no basic standards? Are we to make our calculations using only the arithmetic of appetite?”

He made this practical observation:

“Decrease the belief in God, and you increase the numbers of those who wish to play at being God by being ‘society’s supervisors.’ Such ‘supervisors’ deny the existence of divine standards, but are very serious about imposing their own standards on society.”

Elder Maxwell also observed that we increase the power of governments when people do not believe in absolute truths and in a God who will hold them and their government leaders accountable.

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By Gregory Taggart, February 4, 2011 5:56 pm

I began blogging the Federalist Papers on January 19, with a post on #47, one of the reading assignments that week for my undergraduate class, American Government and Society. At the time, I had assigned #’s 10, 47, 48, 51, 70, and 78. In the rush of the time, I was only able to blog on #47. Things have settled down now, so I’ll begin in earnest and start at the beginning. Whether you find what I write interesting, I can promise you that the Federalist Papers are just that. And these times that’s a bonus because the Papers are already so essential to understanding the Founding; that they are also a fun read is delightful icing.

By the way, you can find many free copies of the Federalist Papers online in pdf format. For this exercise, I’m using the one put out by Penn State. For those who may not know, the Alexander Hamilton, James Madison, and John Jay wrote the Federalist Papers under the nome de plume Publius.

Hamilton begins #1 with a call for seriousness in the public’s examination of the new Constitution recently drafted in Philadelphia, and he’s not shy in proclaiming the importance of what is at stake:

It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.

He continues,

. . . a wrong election of the part we shall act may, in this view, deserve to be considered as the general misfortune of mankind.

Possibly because he feels the moment is so important, he’s also not shy about calling to account those who oppose the ratification of the new document, especially those whose motives maybe be base and who want to make sure they can remain big fish in a small pond because they can’t be sure they’ll be allowed to swim in the big one contemplated by the Constitution. Thus he cautions the public to be aware of

a certain class of men in every State to resist all changes which may hazard a diminution of the power, emolument, and consequence of the offices they hold under the State establishments; and the perverted ambition of another class of men, who will either hope to aggrandize themselves by the confusions of their country, or will flatter themselves with fairer prospects of elevation from the subdivision of the empire into several partial confederacies than from its union under one government.

He doesn’t stop there, of course. Hamilton is careful to recognize that not all who oppose the new form of government do so out of base motives, that some, even many, do so “actuated by upright intentions”; indeed, he admits,

Ambition, avarice, personal animosity, party opposition, and many other motives not more laudable than these, are apt to operate as well upon those who support as those who oppose the right side of a question.

But in admitting this, he concedes no ground. He goes on the criticize the opposition’s “loud . . . declamations and . . . bitter . . . invectives.” And then, in a flourish about the value of good government unjustly stigmatized by people he characterizes has having “an over-scrupulous jealousy of danger to the rights of the people,” he argues that we forget that

the vigor of government is essential to the security of liberty; that, in the contemplation of a sound and well-informed judgment, their interest can never be separated; and that a dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidden appearance of zeal for the firmness and efficiency of government. . . . that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people; commencing demagogues, and ending tyrants. (emphasis supplied)

I think I know what he means and who those words would apply to today. What do you think?

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By Gregory Taggart, February 4, 2011 12:53 pm

For the longest time, supporters of Obamacare in general and the individual mandate in particular have criticized constitutional arguments against the law as unserious. Declares Edwin Chemerinsky, dean and distinguished professor of law at the University of California, Irvine School of Law,

Those opposing health care reform are increasingly relying on an argument that has no legal merit: that the health care reform legislation would be unconstitutional.

That’s changed, as Josh Marshall noted in December.

And with that, the goal posts move. Now the argument is that the recent Federal District Court rulings against the bill will move slowly through the appellate court system, allowing support for the bill to grow. In fact, that’s the government’s strategy at this point, according to the report. Will the stall work? It just might. The report in Bloomberg quotes Sidley Austin attorney Carter Phillips opining on the probability that the Supreme Court will fast track the cases (2 for, 2 against at this point). With certitude that would make Chemerinsky proud, Phillips, who has argued more than 60 cases before the Court, says the chances are “zero.” And why does he say that?

I do not think the court will be inclined to decide this question without the benefit of having the views of at least one and probably more than one court of appeals on a very difficult question of constitutional law. (emphasis mine)

So arguments that once had no merit are now “very difficult question[s].” Wonder what Chemerinsky thinks?