Qwertz

Heller gets announced tomorrow morning at 10:00am EDT. SCOTUSBlog does live blogging of decisions, using a nifty little chat-like text box doo-hickey that doesn't require any mad pounding of the F5 button to get the very latest. Interesting vote-counting tidbit: Heller is the only case left from the March session left to be decided, and Scalia is the only Justice who hasn't written a majority opinion from that session. Usually, the workload gets balanced, so many analysts are predicting a very high probability that Scalia will be writing the majority opinion in Heller. I don't know if I agree, but it is interesting. SCOTUS vote-counting is rather like trying to count hedgehogs while blindfolded. ~Q

Ok, DO and JMS's comments popped up while I was busy writing. The city has an ordinance against trespassing, making it a criminal matter (a misdemeanor), much as most cities do. The City Council has authority to enforce the ordinance. This authority is granted by other ordinances expressly. "Enforcement" in this context almost always means the same kind of power a police officer has to enforce an ordinance. That alone is not enough to give the Council authority to request takedown, but does give them authority to investigate. The City Council also has quasi-judicial authority, and serves (in a voluntary, administrative capacity) as the city's municipal court. There are procedures set out for the exercise of this authority, and it appears as though they have not been violated by the Council sending the letter. Under this authority, the Council sought to impose an administrative penalty, iff Google declined to remove the photos. Google would, of course, not be bound by the findings of the Council, or by the Council's imposition of fine, because the administrative penalty is voluntary on the part of the defendant. As such, the Council's findings and penalty would have had absolutely no weight or deference in any actual criminal prosecution that might have take place if Google had remained uncooperative. Whether this fusion of political authority in one body is appropriate is one question; whether the Council complied with the law by sending the letter is another. As to the latter, my analysis indicates the Council was acting within its authority, even if there had been no complaints from property owners. I don't like it, but my objections are separation-of-powers objections, not legal ones. Alas. ~Q Edit: Whoops!

I require additional facts. How did the city make its demand to Google? Was it a demand or a request? Did it involve a threat to sue? Was it the city who made the demand, or the Homeowners' Association? The site looks like it is run by the city (and a quick check shows that it is), but the Homeowners' Association is very prominently featured. I am guessing here, but I imagine that the roads are maintained by the HA, through fees imposed by virtue of encumbrances on the property, which probably include HA membership and easements for the roads. These encumbrances originate from an earlier time when all the property was owned under a single title and will, of course, run with the land. While I personally dislike HAs and would choose, given the opportunity, to own property not so encumbered, they are morally and legally acceptable exercises of contract. ------------ Doing some digging, it looks like the letter was sent by the City Council, which appears to be both legislature and executive in North Oaks. It also appears to have been a request, not a demand, and the letter "threatened" Google with the risk of being cited for violating the city's trespassing ordinance, which the Council has authority as executive to enforce. Furthermore, the statutes grant the City Council authority to impose "administrative penalties" (i.e., fines) for any violation of the city's ordinances. In this way, the Council gets something of a quasi-judicial power, too. But these administrative penalties (and the proceedings concerning them) are expressly offered as a voluntary alternative to traditional criminal charges. The city does not appear to have its own municipal court - I cannot figure out where criminal charges for violations of the city ordinances would be filed. Perhaps at the county courthouse. So it appears the City Council acted within its authority under the city ordinances, and there's nothing constitutionally impermissible (under the U.S. Constitution; I'm not familiar with MN Const.) with the ordinances giving legislative, executive, and administrative, quasi-judicial authority to the Council. The letter requested takedown, and did not make a demand for payment of the administrative penalty (to do so would have violated the administrative procedures). It made an offer: we're willing to forgo administrative or criminal prosecution if you just take down the photos and don't do it again. Google took down the photos. I don't like a lot of the statutes in North Oaks, but I don't see anything wrong with the letter. Still would like to see the actual letter, though, if anyone knows where it can be read. ~Q

There is in RICO. Allows the government seize all assets used in the commission of a crime. Usually they auction the seized property. There's been a lot of complaining about the breadth of the seizure law - very few people seem to like it much. If I get a second tomorrow, I'll post the title and section number, and dig up a few articles on it. Incidentally, my uncle, who works for Intel and invented the Pentium processor, bought his house at a government auction selling off property seized from one of the West Coast's biggest drug czars back, oh, about 7 years ago. Got a deal on it. Nice, wooded, Oregon mountain country. ~Q

Excellent points, all, of course. ~Q

Before that argument will fly, you need to show that it is possible, in a capitalist society, for anyone to gain and hold a monopoly on anything without resort to government-sanctioned force. ~Q

They must be 100% certain that at least 60% of of them will be saved. They really ought to diversify their portfolio of triggermen. Only five? And at least three of them have to be in exactly the same state of grace, under the same soteriology? What if they've got it just a little wrong and not enough triggermen are taken in the rapture? Presumably if the company gets it wrong, then a fair chunk of the people who signed up with the company would have gotten it wrong, too, and won't be nearly as upset about their messages not getting sent as being left behind themselves. Besides... soooo unenforceable. ~Q

There's nothing wrong with a group of people deciding to tie their employment fates together and act "collectively" to try to get something better from their employer. Saying "give us all raises or we'll quit" is not coercion. They make their choice, and the employer must be allowed to make his. There is something deeply wrong when that group uses force to compel the employer to give them a raise and prohibit the employer from firing them. The problem isn't with unions per se, but with federal and state laws that force employers to deal with unions. ~Q

Never one to pass up a chance to plug my favorite movie, I should like to mention Gattaca, which is extremely romantic, even though romance is not the main theme. ~Q

It was a humorous suggestion that I haven't thought much about. I do not know if auctions would be the best way to privatize, but they are one way to do it. Just thinking off the top of my head, the funds should be used to help eliminate other confiscatory programs. Money generated from auction of the Interstate system could be used to issue Social Security or Medicare refunds. Eliminating the welfare state will be short-term costly by any means; this money could help offset that short-term cost. Or it could go into legitimate government functions, like defense. As long as it eventually goes back to the taxpayers, either as a check or as legitimate government services. ~Q

They could put them up on eBay. <grin> ~Q

Okay, but why does it matter one way or the other? What difference does it make to someone trying to formulate/enact/follow/interpret a law? Maybe the argument is over whether objective justification is a prerequisite for objective construction (or vice versa)? ~Q PS: I mean, I think "objective law" can refer to slightly different aspects of the same integrated concept, depending on context. It can refer to objective construction, objective formulation, or both. What I need to know is: 1) in what context has it been used where we disagree on its meaning, and 2) what is it about the way "objective law" is treated in that context that makes the disputed question a relevant or important one?

At which point you turn around and contract out the operation and maintenance of your bit of road to a road maintenance company. Probably the road maintenance company that offers the best services for the price, which will most likely be the road maintenance company your neighbors use, because it is cheaper to maintain longer, contiguous strips of road than it is to maintain individual, disparate chunks, and a road maintenance company can thereby offer better services at lower prices to maintain contiguous segments. This leads to high uniformity, low costs, and efficient administration, all in private hands and subject to private liability. Hooray! ~Q

I don't see what the disagreement is. Everyone appears to be saying the same thing: just laws must be objectively justified and objectively constructed. Neither is sufficient; both are necessary. Is anyone arguing to the contrary? If not, what am I missing? ~Q

How can a proper government (i.e., one that exists solely to protect individual rights) exert authority over totally unowned land? There are no individual rights concerning that land to protect. Just because other governments "recognize" a certain boundary does not mean that the government's power extends to that boundary. Perceptions do not make it so. Whose rights would be violated by Country Y's citizens moving into the unowned land? Whose rights would the government of Country X be protecting by prohibiting that move? ~Q

So goes rational basis analysis. I cannot find a single economic regulation that has ever been struck down by the Supreme Court for failing to meet the rational basis standard of review. It is often called the "laugh test." One could get the same result by standing in front of a mirror and watching yourself make the government's argument. If you can do it without completely cracking up, the law is constitutional. The problem is that the court leaves important terms undefined. The standard is: the regulation must bear a rational relation to achieving some legitimate state interest. What is a rational relation? What is a legitimate state interest? In the case of Louisiana's florist license, we see that "rational relation" means anything that might arguably help the government achieve its interest. Doesn't have to be very good at doing it. Doesn't even have to work at all. Just has to arguably or theoretically work. And as for legitimate state interests, the states are nearly unrestricted in their constitutional authority to regulate. A legitimate state interest is any asserted interest that does not conflict with an express provision of the state or federal constitution, as interpreted by the courts. So yes, the quoted passages could be used to justify just about anything. And so it is across the country. ~Q

Since you asked... The Institute for Justice, representing several florists denied licenses under Louisiana's florist regulations because they failed to pass the subjective exam administered and scored by established, licensed florists in the state, sued in Federal District Court to challenge the constitutionality of the licensing scheme. In Meadows v. Odom, 360 F. Supp. 2d 811 (M.D.La. 2005), Judge Polozola of the United States District Court for the Middle District of Louisiana found that would-be florists were not a suspect class, and that the right to pursue the profession of one's choice, while recognized as a protected liberty interest, is not a fundamental right subjecting regulations on that interest to strict scrutiny. Rational basis applies. (This is pretty well established in constitutional law.) The challengers therefore bore the burden of proving that there was no rational relation between the regulation scheme and any legitimate state interest. Judge Polozola then determined that the regulations were rationally related to a legitimate state interest. Specifically, the state's "interest in the public safety and welfare, and specifically, its desire that floral arrangements would be assembled properly in a manner least likely to cause injury to a consumer and will be prepared in a proper, cost efficient manner." Id. at 842. There was testimony about the importance of flowers in very sensitive times of people's lives, like weddings, births, deaths, &c., and that improperly arranged flowers can cause significant emotional damage at these important times. There was also testimony about the dangers of protruding wires, diseased flowers, exposed picks or thorns, &c. The state has a legitimate interest in protecting health and safety. The legislature has discretion to determine what industries require regulation in the interest of health and safety, and the courts shall not second-guess that determination. Judge Polozola's opinion was later vacated by the United States Court of Appeals for the 5th Circuit. Meadows v. Odom, 198 Fed. Appx. 348 (5th Cir. 2006). One of the plaintiffs had died before the appeal reached the Court of Appeals, and the others had either left the area or changed professions after Hurricane Katrina. Therefore, the case was mooted and the lower opinion vacated. ~Q

ARB offers an audio lecture by Arline Mann called The Rationality of the Common Law, which is on my list of things to buy. Lots of the common law is pretty objective. For example, waste (in property). It happens when the holder of a tenancy does damage to the reversionary interest. It's all very straightforward and well-defined, without resort to the sort of "balancing tests" that are the hallmark of non-objective law. ~Q

There are many things the government could do more efficiently. The government wastes a HUGE amount of money trying criminals in court. It would be eminently practical to execute all suspected criminals on the spot. No criminal trials to conduct; no public defenders to appoint; fewer people conscripted into jury service; zero jail and prison costs; and of course, far, far fewer criminals on the streets. It would have a great deterrent effect too. The moment you sacrifice your ideals to 'efficiency,' you are on the path to fascism. Just because you find it difficult to figure out how to do roads privately doesn't change the fact that you must do roads privately if you want a government that protects individual rights. ~Q

The fault for the problems arising out of the Hamdi-Hamdan-Boumediene case line lies almost entirely with Congress. Specifically with Congress' failure to recognize the threat. Boumediene doesn't actually say that detainees must have access to the habeas corpus writ, it says that Congress didn't properly suspend the writ or provide review procedures practically equivalent to the writ. In war time, the Executive needs to be able to detain enemies without allowing them the sort of recourse to court review that habeas allows. But Congress' (and to some extent the Executive's) failure to recognize the current war and clearly and objectively define who our enemies are puts us in the unacceptable position of indefinitely holding persons that may or may not fall into a very ill-defined category "enemy combatant" and not letting anyone challenge that position. The Boumediene decision will help force Congress (and the Executive) to stop fighting a half-war and either fully commit or back way off. The decision doesn't grant anyone any rights - rights cannot be granted. Not even "constitutional rights," because the Constitution concerns government behavior. If the Constitution says "the privilege of the writ of habeas corpus shall not be suspended," then it means that the writ of habeas corpus shall not be suspended. (The Constitution allows Congress to suspend the writ "when in cases of rebellion or invasion the public safety may require it.") It doesn't mean "US citizens get habeas review," or "people on US soil get habeas review." It means that the government is always susceptible to the writ. It doesn't concern the question of who may seek the writ. The MCA system did provide for a kind of trial. Military tribunals were not full trials, but they did require the Executive to show cause for why the person should be deemed an enemy combatant before they could be detained. There were procedural rules and there have been no indications that they were not followed. The Supreme Court has decided that these procedures aren't enough. I do not think Geneva is the solution. A government dedicated to protecting individual rights does its citizens a disservice when it signs away its right to defend itself by any means necessary, as the US has done in various treaties, including Geneva. A better solution would be for the Executive to step it up and start fighting like it means it, instead of relying on stateside detentions and the mealy-mouthed altruistic pussyfooting we're calling "the war in Iraq." ~Q PS: Of course, the habeas question presented in Boumediene is far less interesting to me than the jurisdiction-stripping question: What is the extent of Congress' power under the Exceptions Clause to strip the Supreme Court of jurisdiction granted under the Vesting Clause. I am still analyzing the case w.r.t. this question and will post my findings at a later date.

I don't give a cent to the ones who try to use guilt or pity to get money out of me. But if someone asks me, "Excuse me, can you spare some change?" I'm much more generous. ~Q

The Objectivist ethics rightly condemns the puppy-owner who tortures and kills puppies for the sake of torturing and killing puppies, not for what he does to the puppies, but for the fact that he finds what he does to puppies pleasurable or beneficial or something worth doing. Objectivist ethics condemns anyone who destroys for the sake of destroying. ~Q

As a legal matter, the Indiana Supreme Court recently said "Yes." ~Q

If you're talking about Massachusetts v. EPA, 127 S. Ct. 1438 (2007), then what you say is not accurate. In Massachusetts v. EPA, the Court held that carbon dioxide and other greenhouse gases "fit well within the Clean Air Act's capacious definition of 'air pollutant,'" id. at 1462, and that therefore the EPA had statutory authority to regulate CO2. Id. The EPA is required to regulate CO2 emissions from new cars only if it first makes a judgment that CO2 "cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare." Id. at 1462, citing 42 U.S.C. § 7521(a)(1). EPA had made no such judgment, but it had been presented with a petition for rulemaking. Massachusetts v. EPA, at 1449. Once EPA responded to such a petition, "EPA can avoid taking further action only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do." Id. at 1462. EPA did neither in its refusal to exercise its regulatory authority, and therefore failed to comply with the Congressional command of the Clean Air Act. Id. The majority opinion does not say that CO2 is a pollutant. It says only that EPA has authority under the Clean Air Act to regulate CO2 emissions, and that EPA failed to follow the statute's described limits on EPA's authority to decline to regulate. While the dissenters (Roberts, C.J., Scalia, Thomas, Alito, JJ.) disagree that petitioners have standing, Massachusetts v. EPA, 127 S. Ct. 1438, 1463 (Roberts, C.J., dissenting) they also disagree with the majority's interpretation of the Act to require EPA to exercise regulatory authority in any situation where it has not yet made the "judgment" necessary under the Act. Massachusetts v. EPA, 127 S.Ct. 1438, 1471 (Scalia, J., dissenting). All four dissenters also signed Scalia's dissent, which argues that while the statute does limit the rationale by which EPA may make its judgment, it does not limit the rationale by which EPA may abstain from making a judgment either way. The dissenters do not take issue with the majority's finding that CO2 fits within the Clean Air Act's capacious grant of regulatory authority to EPA. Perhaps this is where you are confused in thinking that this means that all nine Justices agree that CO2 is a pollutant. Rather, they all agree that the Clean Air Act is very broad. Nowhere does the opinion or either of the dissents address the question of whether CO2 emissions do in fact cause climate change. The science was never on trial. ----------------------------------------------------------------- A civil libel suit might work, because truth of the statements is directly at issue. But it would be very very hard to find just the right plaintiff, because of variations in the availability of certain defenses. Another problem is the 7th Amendment's guarantee of a jury trial on demand, by either the plaintiff or a defendant, in a civil case at common law with at least $20 in controversy. If the desire is for a judge to decide the issue, this will almost certainly stand in the way, unless the action is one for a declaratory judgment (possible, if there is a threat of suit by alarmists), or an injunction to restrain somesuch alarmist or other from speaking (highly unlikely!). But even in a civil jury trial, the judge does have a role in vetting experts under Daubert. At least, in Federal court. ~Q

Re: pollution - it is just a fancy word for trespass and property damage. Gov't may punish trespass and property damage, both civilly and criminally. But gov't has no right to cap emissions when those emissions do not cause trespass or property damage. ~Q