Tag Archives: legal

Republican Judges Set to Rule on Republican Objection to New EPA Regs

Mother Jones

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Things that make you go “hmmm”:

Environmental attorneys say they are confident the court will reject the emergency appeal.

Nevertheless Thursday’s hearing, before three Republican-appointed judges, marks the first of what promises to be a series of legal hurdles for climate-change rules.

The subject is Obama’s new rules mandating greenhouse gas reductions from power plants, which energy industry attorneys say is “double regulation” since the EPA already regulates other stuff at power plants. No, that doesn’t make much sense to me either. Still, the two bolded phrases above might have been believeable together a few decades ago, but not so much now. If it’s a Republican panel, I think there’s at least a decent chance that we’ll get a Republican ruling, regardless of whether it makes any legal sense.

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Republican Judges Set to Rule on Republican Objection to New EPA Regs

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Mike Huckabee Should Probably Stop Criticizing Hillary Over Her Emails

Mother Jones

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Former Arkansas Gov. Mike Huckabee thinks questions about Hillary Clinton’s emails as secretary of state “will linger” throughout the 2016 presidential race. “If the law said you had to maintain every email for public inspection, that’s what you got to do,” he recently told ABC News. Huckabee also suggested that the missing emails might shed new light on the deaths of four Americans in Benghazi, Libya in 2012.

Huckabee, who is considering a second run for president himself, is probably right that the issue of secrecy will dog Clinton’s campaign going forward. But he might not be the best man to make that case. As Mother Jones reported in 2011, Huckabee destroyed his administration’s state records before leaving office in 2007.

In February, Mother Jones wrote to the office of Arkansas Gov. Mike Beebe seeking access to a variety of records concerning his predecessor’s tenure, including Huckabee’s travel records, calendars, call logs, and emails. Beebe’s chief legal counsel, Tim Gauger, replied in a letter that “former Governor Huckabee did not leave behind any hard-copies of the types of documents you seek. Moreover, at that time, all of the computers used by former Governor Huckabee and his staff had already been removed from the office and, as we understand it, the hard-drives in those computers had already been ‘cleaned’ and physically destroyed.”

He added, “In short, our office does not possess, does not have access to, and is not the custodian of any of the records you seek.”

Huckabee responded at the time by attacking Mother Jones, which he claimed “doesn’t pretend to be a real news outlet, but a highly polarized opinion-driven vehicle for all things to the far left.” He also called the story “factually challenged.” But the Arkansas Department of Information Systems confirmed that the hard drives had been destroyed while he was still in the governor’s mansion. Legal? Sure. But absolutely shady.

Even before he destroyed his hard drives rather than grant the public access to his records, Huckabee took a combative approach to public records requests. When Arkansas Times editor Max Brantley (who has also weighed in on Huckabee’s transparency record) requested documents from Huckabee in 1995, the then-lieutenant governor flipped out. In a press release issued by his campaign, he attacked Brantley as a “disgruntled and embittered wannabe editor” from a “trashy little tabloid”—and went after Brantley’s wife, a Clinton judicial appointee, for good measure. All because the editor filed a request for records every citizen was entitled to.

Dale Bumpers Papers, Special Collections, University of Arkansas

Hillary Clinton’s missing emails are a legitimate scandal if you care about government transparency. But many of her loudest critics have done little to inspire confidence they’d do anything differently.

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Mike Huckabee Should Probably Stop Criticizing Hillary Over Her Emails

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The Conference Where Guys in Suits Pitch Marijuana Start-Ups to Other Guys in Suits

Mother Jones

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Sitting atop San Francisco’s Nob Hill last week, in a banquet room of the opulent Fairmont Hotel, I began thinking maybe I ought to invest in marijuana. “You really should,” said a woman at my table, who reminded me, in her wholesome, middle-aged earnestness, of my mom. About a year ago she poured money into Poseidon Asset Management, a marijuana hedge fund that requires a minimum investment of $100,000. The fund earned a 67 percent return in 2014, besting the S&P 500 by a factor of six. Now she’s trying to figure out what to do with all of her extra cash.

As we talk, dozens of professional investors are listening to a handful of suit-wearing pot entrepreneurs compete onstage for start-up funding. There’s SweetLeaf, an organic edibles company that will target the Whole Foods demographic; Intelligent Light Source, a maker of hydroponics lamps that has ties to MIT; and VapeXHale, a high-end vaporizer controlled by an iPhone app. I’m feeling pretty good about all of them, not least because they’ve already been vetted and incubated by the ArcView Group, the gathering’s organizer and a sort of Y-Combinator for pot startups.

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The Conference Where Guys in Suits Pitch Marijuana Start-Ups to Other Guys in Suits

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What Does "Cage-Free" Even Mean?

Mother Jones

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What kind of farm do you imagine when you think of organic or cage-free eggs? Images of hens frolicking in lush meadows?

That kind of farming exists, but such conditions aren’t mandated by organic code—not explicitly anyway. According to the USDA regulations, animals raised organically have “year-round access … to the outdoors, shade, shelter, exercise areas, fresh air, clean water for drinking, and direct sunlight, suitable to the species, its stage of life, the climate, and the environment.” Those rules are open to a wide variety of interpretations.,

Ten times over the course of a year and a half, under cover of night,a group of radical animal-rights activists snuck into the facilities of a large operation called Petaluma Farms, a major west-coast major supplier to Whole Foods and Organic Valley, according to The New York Times. The Petaluma egg complex produces both certified-organic and non-organic “cage free” eggs, the main difference between the two standards being that organic eggs must come from hens fed only organic feed.

The group, Direct Action Everywhere, seems to find all animal farming abhorrent—a point driven home in the video’s first third, wherein several group members denounce the killing of animals. Later, footage taken from within the Petaluma facilities shows lots of birds wallowing tightly together, often amidst what looks like significant buildup of their own waste. The narrators use words like “stench, ” “filth,” and “misery” to describe the scene; and show several birds in obvious bad health—birds with blisters, missing feathers, one clearly caked with shit—along with birds that appear to be in decent shape. The crew dramatically rescues one pathetically injured bird, handing her over the fence, one activist to another, and whisking her to a vet in Berkeley, who declares her in dismal shape.

In a media statement, Petaluma owners Judy and Steve Mahrt wrote that “The video in no way reflects our practices or the overall health of our flocks.” As for outside access, the statement adds the company maintains “sun porches for outdoor access while protecting from predators and disease.” All the filming in the video akes place at night, when most domesticated chickens go inside, anyway. So the video doesn’t tell us anything about the birds’ outdoor access.

Pressed for details, the company referred me to the below video. At about the 2:38 mark, there’s a depiction of one such sun porch—it’s a raised, triangular space jutting off the side of the building, made of chicken wire. By the company’s own admission, then, the birds never touch the ground outside—their “outdoor access” seems to conform to the letter of organic code, if not the spirit of organic farming conjured in the heads of consumers.

This is not Petaluma’s first PR problem. Michael Pollan famously used it as an example of industrial-organic farming in Omnivore’s Dilemma, observing that its meat-poultry buildings “don’t resemble a farm so much as a barracks,” and that the birds were conditioned to never make use of their access to outdoors. As for the company’s egg operation, Judy’s Family Farm, Pollan never got a look: “The company was too concerned about biosecurity to let a visitor get past the office.”

Last year, Petaluma settled a lawsuit brought by the Animal Legal Defense Fund over the depiction of the lives of its hens on its packaging. As part of the agreement, in which Petaluma did not admit to wrongdoing, the company agreed to modify its egg cartons “by removing the illustration of hens on a green field and removing the language that Plaintiff alleged could lead consumers to mistakenly believe the eggs come from hens with significant outdoor access.” Previously, the inside of the cartons claimed that “these hens are raised in wide-open spaces in Sonoma Valley, where they are free to roam, scratch, and play.”

A “sun porch” at a Petaluma Farms facility—the “access to outdoors” required by organic code. Screenshot from the video, above, provided by Petaluma Farms

So what’s to be taken away from the Direct Action Everywhere video? I see it as an important but problematic look behind the veil of what Pollan has deemed “supermarket pastoral”—the gauze of marketing that cloaks the often-harsh realities of large-scale organic farming.

Yet compared to the vast Iowa facilities that triggered a half-billion-egg salmonella recall in 2010 (the Food and Drug Administration’s stomach-turning post-outbreak inspection report can be found here), the Petaluma houses captured on tape by Direct Action Everywhere actually look pretty good. When you confine thousands of birds into a building and manage several buildings, problems like the ones caught on take by DAE are going to arise. I’d feel better about Petaluma if it represented standard practice for industrial egg production, and not the rarefied status implied by organic certification.

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What Does "Cage-Free" Even Mean?

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Congressional Democrats Back Obama on Immigration Reform

Mother Jones

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With the election safely over, congressional Democrats have regained their courage on immigration and are now urging President Obama to go ahead with an executive action on immigration reform. Here’s an excerpt from a letter that several Democratic leaders in the Senate sent today:

The principle behind most of what Obama plans to do falls under the category of “prosecutorial discretion,” which means he can decide where best to use the government’s limited law enforcement resources. Just like previous presidents, he can decide that resources should be directed in a certain way, which effectively means that certain immigrants will be free to stay in the country simply because no one will be targeting them for deportation.

We can argue about just how far presidents should be allowed to go down this road, but basically it’s something with a fair amount of precedent. This is clearly the focus of the letter from Senate Democrats, and although I’m not a lawyer, I’m pretty confident that the Justice Department will produce an adequate legal defense of Obama’s constitutional authority in this area.

But what’s probably most important goes unsaid—or perhaps merely implied—in the Senate letter: if you qualify for “deferred action,” you can also get a work permit and a Social Security number. I don’t quite understand the legal authority for this, but it’s part of the mini-DREAM executive action Obama signed in 2012, so apparently it’s on firm legal ground.

In any case, it now looks like Obama is not just firmly committed to this, but has the public support of key congressional Democrats as well. It’s coming whether Republicans like it or not.

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Congressional Democrats Back Obama on Immigration Reform

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Gitmo Detainees Cite Hobby Lobby in New Court Filing. Read It Here.

Mother Jones

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In a new court filing, attorneys for two Guantanamo Bay detainees have invoked the Supreme Court’s controversial decision in Burwell v. Hobby Lobby, which allowed certain corporations to ignore the Obamacare contraception mandate if their owners object to it on religious grounds. The motions, filed with a Washington, DC, district court on behalf of Ahmed Rabbani of Pakistan and Emad Hassan of Yemen, ask the court to bar military officials from preventing Gitmo inmates from participating in communal prayer during Ramadan.

“Hobby Lobby makes clear that all persons—human and corporate, citizen and foreigner, resident and alien—enjoy the special religious free exercise protections of the Religious Freedom Restoration Act,” the lawyers argue.

A spokesman for the Department of Defense told Al Jazeera America on Friday that the “Defense Department is aware of the filing,” and that the “government will respond through the legal system.”

Read the emergency motion for a temporary restraining order below:

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Gitmo Hobby Lobby Filing (PDF)

Gitmo Hobby Lobby Filing (Text)

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Gitmo Detainees Cite Hobby Lobby in New Court Filing. Read It Here.

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Like it or Not, Guantanamo Is Here to Stay

Mother Jones

Praise the Lord. Max Fisher has taken on the thankless task of explaining to both left and right why the Taliban prisoner exchange isn’t either of the following:

The first step in a secret plan from the lawless despot Obama to close Guantanamo.
Proof that Obama could have closed Guantanamo all along and that he now he has no excuse not to.

Obama is not going to close Guantanamo. The legal loophole he used in the Bergdahl prisoner exchange—no matter what you think of it—flatly wouldn’t apply to shutting down the entire prison. Plus there’s the fact that Congress would go ballistic if he tried—including plenty of Democrats. Impeachment would go from a fever dream of the tea-party right to a very realistic bipartisan possibility. Finally, there’s frankly never been much evidence that Obama cares all that much. He’d obviously like to shut down Guantanamo, but he just doesn’t feel that strongly about it.

So give it up. Guantanamo will be here through the end of Obama’s presidency, and quite possibly until its last prisoner dies. It’s fanciful to think anything else.

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Like it or Not, Guantanamo Is Here to Stay

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There’s No Good Reason for Keeping OLC Opinions Confidential

Mother Jones

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President Obama’s nomination of David Barron to the First Circuit Court of Appeals has reopened a fight over whether the White House should release Barron’s memo (written when he worked at the Office of Legal Counsel) justifying drone strikes against Anwar al-Awlaki. Time reports:

Under pressure from liberals and libertarians that threatens to sink a judicial nomination, the Obama Administration is moving closer to releasing a classified legal justification for the use of drone strikes against Americans fighting for al-Qaeda, Administration officials tell TIME.

….The U.S. intelligence community and the Office of the Director of National Intelligence want the Administration not to release the memo. Also against release is the Office of Legal Counsel, which serves as the in-house legal expert on executive branch powers and which vigorously guards its opinions.

Greg Sargent comments:

The case for more transparency was spelled out recently by the New York Times, which argued: “the government has the right to secrets about its operations, but not secrets about its legal reasoning.”

If there is a convincing rebuttal to that argument, I haven’t heard it. Indeed, one person who may agree with it is President Obama, given that in his big national security speech last May, he said he’d tasked his administration to “extend oversight of lethal actions outside of war zones that go beyond our reporting to Congress.” What is the rationale for keeping the legal justification secret?

I’d go further. I’ve never really understood the rationale for any OLC opinions to stay confidential. In some sense, yes, there’s a case to be made for executive privilege: this is advice from one of the president’s aides to the president himself, and courts have ruled that presidents have a legitimate interest in keeping internal advice confidential in order to ensure that they get candid judgments. But that’s a helluva stretch in this case because OLC opinions go beyond mere advice. For all practical purposes, they have the force of law, since presidents use OLC opinions as the basis for determining what they can and can’t do.

Should the United States have secret laws? As it happens, the United States does have secret laws. That is, actual congressional statutes that you and I aren’t allowed to read. So this isn’t quite as unprecedented as it seems. Still, that’s a rare occurrence, while OLC opinions are routinely kept secret. Why? If specific bits and pieces need to be redacted, fine. But in a democracy, the legal reasoning justifying the enforcement of our laws should be a matter of public record. We should all know what the laws of the land are and how the executive branch is allowed to act on them. There’s really no compelling argument on the other side.

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There’s No Good Reason for Keeping OLC Opinions Confidential

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Op-Docs: ‘Animals Are Persons Too’

A short documentary follows the lawyer Steven Wise’s effort to break down the legal wall that separates animals from humans. Link:  Op-Docs: ‘Animals Are Persons Too’ ; ;Related ArticlesOn the Environment: Forty-Four Years of Earth DayDot Earth Blog: No Time to Waste: Students Pursue Environmental Progress Instead of Exam GradesDot Earth Blog: Beneath the Surface of China’s Great Urban Rush ;

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Op-Docs: ‘Animals Are Persons Too’

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The Hobby Lobby Case Probably Doesn’t Depend Much on What the Law Says

Mother Jones

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So the Hobby Lobby case was heard today, the latest in a long string of challenges to Obamacare. (Next up: whether the law allows subsidies only for policies bought on state exchanges, not on the federal exchange.) In short, the question in this case is whether Obamacare’s requirement that insurance policies cover contraception is legal.

I haven’t written about it before because I’m frankly not sure what to say. As with so many other recent cases, the law seems pretty clear to me. There’s no precedent for corporations having rights of religious freedom in the first place, and that alone seems like enough to toss the case out. But even if they do, the plaintiffs have to show that the contraception requirement imposes a “substantial burden” on them. Their argument is that if they don’t comply, they’ll get hit by substantial penalties. But that’s ridiculous. The question is whether complying with the law is a substantial burden. In other words, does insurance coverage that includes contraception cost them more than insurance coverage without it? The evidence on this is fuzzy, but it seems to be fuzzy only on the question of whether there’s any cost at all. Even if there is, it appears to be small. There’s simply no serious evidence that the cost of complying with the law is large in financial terms, and it’s obviously not large in operational terms since Hobby Lobby literally has to do nothing except continue buying insurance from the same carrier they’ve always bought it from.1

So that’s where we stand. There’s no precedent in the past two centuries that gives corporations First Amendment religious freedom rights. And as near as I can tell, the contraception mandate imposes, at most, only a tiny burden on Hobby Lobby.

But none of that seems to matter. It doesn’t matter that I’m not a lawyer and might be wrong about all this. Others with the intellectual chops to know this stuff have made similar arguments in much more detail. And anyway, I thought the same thing about the original Obamacare case. It simply didn’t seem legally tenable. But it almost carried the day. A frail argument, invented a couple of years earlier and with exactly zero precedent behind it, came within a whisker of getting five votes on the Supreme Court.

This sure seems to be a similar case. The law doesn’t really matter. Four justices just don’t like the Obamacare mandate and will vote anywhere and at anytime to strike it down. Four justices will vote to uphold the mandate. Anthony Kennedy will provide the swing vote. It’s also possible, I suppose, that John Roberts will vote to uphold the mandate, simply on the principle that having upheld Obamacare once before on a slim technicality, he’s not going to relitigate it over and over on increasingly trivial details.

So….I don’t know. In cases like this, the legal arguments seem like little more than window dressing. Everyone knows the outcome they want, and they tailor their opinions to produce those outcomes. Maybe that’s too cynical. I guess we’ll find out next June.

1Oddly enough, I don’t really buy the contention that the burden is small because, after all, Hobby Lobby can simply choose not to provide health insurance at all. Technically, this might be a good argument, but it doesn’t really feel right to me. If the price of complying with the law is eliminating health insurance for Hobby Lobby’s entire employee base, that sure seems pretty substantial to me, even if the federal government isn’t directly coercing its choices one way or the other.

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The Hobby Lobby Case Probably Doesn’t Depend Much on What the Law Says

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