A State of Colorado program which provides scholarships to students attending private and public colleges in the state, in lieu of institutional support to public colleges and universities, has been held unconstitutional by the 10th Circuit Court of Appeals, because pervasively religious institutions, such as Colorado Christian University and Naropa University, are excluded from the program.

The Colorado program was devised to cause public universities tuition to be excluded from revenues subject to anti-tax provisions of the state constitution whose growth is limited.  When an institution has less than 10% state support, its revenues don't count towards the cap.  

The current process of allowing people to seek asylum in the U.S. works poorly.  Superhuman efforts to reach the promised land in the U.S. end with no more than a crapshoot that does not distinguish between worthy claims and frivilous ones (and often can't).  This is no way to run a railroad.  

A better system would work more like the pre-Civil War underground railroad.  The judgment about whether someone was eligible for help would be made by a trusted person on the ground where the oppression was occurring, and would be trusted by everyone else on up the line.  The scouts at the beginning would pro-actively look for opportunities to spirit oppressed individuals who want to get out, which could be evaluated on the ground, rather than passively waiting to see what turned up on our shores like the flotsam and jetsom of the world.  Those in need of help would be actively sheparded to their destination in the U.S.  A helping hand and certainty, rather than prolonged preventantive detention and doubt, would great those helped when they arrived.

The Democratic Leadership Council (DLC) was established as a Code Sec. 501(c)(4) social welfare organization in 1985 by Democrats including Bill Clinton.  It received the status sought from the IRS on February 7, 1986.  

The IRS revoked the DLC's tax-exempt status in 2002 for the years 1997-1999 on the grounds that the DLC provided too much of a private benefit to Democratic officials though its support of them in those years.  This cost the DLC $20,000 in taxes and refunds, which the DLC sued to have refunded.  This spring it won at the District Court level.  It is not known at this time if the IRS will appeal the ruling.

 

During the administration of George W. Bush, life on Wall Street has not been good for investors:

* Annualized Stock Market Return: 1.73%

* After Tax Annualized Stock Market Return: 1.47%

* Annualized Inflation Rate: 2.68%

* Annualized Real Stock Market Return: -0.95%

* Annualized After Tax Real Stock Market Return: -1.21%

All the tax cuts in the world don't matter if you can't make a decent profit.

The U.S. Supreme Court made clear today in oral arguments in the case of District of Columbia v. Heller that its opinion in the case will establish an individual right to bear arms for the purpose of self-defense arising under the Second Amendment, subject to some governmental limitations.  

Every observer who has read the transcript of the oral argument agrees that there are five votes on the Court for this position.  Multiple observers think that the opinion will be written either by Chief Justice Roberts or Justice Kennedy.  So now what?

Promoted from the diaries, with minor editing ~ smintheus

The United States District Court for the Northern District of California held yesterday in the case of Mohamed v. Jeppesen Dataplan, Inc. that the state secrets doctrine bars all suits against anyone involving "allegations of covert U.S. military or CIA operations in foreign countries against foreign nationals" which the government has not admitted.

In other words, the CIA is free to violate your civil rights with impunity, so long as it doesn't publicly admit to doing so.

The case in question involved a private company involved in illegal rendition flights that were part of a larger CIA operation to interrogate and torture terrorism suspects, in this case, foreign nationals.  Nationality is irrelevant, however, to the application of the state secrets doctrine.  It prevents American citizens from suing anyone for conduct in connection with covert operations as well, and indeed was created in a case brought by United States soldiers whose integrity was never questioned.

The result isn't a great surprise, given the outcome in the dozens of other cases in which the Bush Administration has asserted the state secrets privilege, such as the extraordinary rendition case of El-Masri v. United States, 479 F.3d 296 (4th Cir. 2007).  But, it is remarkable mostly because it acknowledges a point that some of the better known cases addressing the states secrets privilege have not.  The Northern District of California makes clear that the state secrets privilege amounts to absolute immunity from prosecution for every private and public party involved in a genuinely covert action.

This contrasts strongly with the original context in which the state secrets privilege was created in the U.S. Supreme Court case of United States v. Reynolds, 345 U.S. 1 (1953)), where the privilege was used to prevent the people bringing the suit from obtaining key documents necessary to prove the case from the government itself, but not to prevent the suit itself from being brought based upon competent evidence such as their own testimony.

Of course, a right without a remedy isn't much of a right.  So, this arcane court created privilege, in fact, abrogates clearly established constitutional rights of U.S. citizens and non-citizens, simply because the United States government has chosen to violate those rights secretly, rather than publicly admitting that it is violating those rights.  

No language in the United States Constitution, no law enacted by Congress, no treaty ratified by the U.S. Senate, and no regulation published in the federal register demands or suggests this result.  The notion that the government can imprison and torture someone without any probable cause, due process or resort to habeas corpus, in violation of extradition treaties with the nations involved, is a creation out of whole cloth by the Justice Department and the judiciary.  It is also notable that a review of the since declassfied documents in the case that established the states secrets doctrine showed that the people barred from bringing the suit did in fact have a valid claim and that the government's lawyers lied when they claimed that state secrets were implicated in the case, a deceipt for which a court asked to reopen the case held there was no remedy.  Herring v. United States, 424 F.3d 384 (3d Cir. 2005).  

We also know that this administration, while not the only one to invoke the state secrets privilege, has done so far more aggressively than any past adminstration.  The Reporters' Committee for Freedom of the Press claims that, "while the government asserted the privilege approximately 55 times in total between 1954 ..... and 2001, [the government] asserted it 23 times in the four years after Sept. 11.''

The 10th Circuit Court of Appeals today asked the Oklahoma Supreme Court to answer for it a politically volatile question:

As of September 1-2, 2003, did the Oklahoma Wrongful Death Statute, Okla. Stat. tit. 12, § 1053, afford a cause of action for the wrongful death of a nonviable stillborn fetus?

Colorado State Representative Debbie Stafford, who represents Arapahoe and Elbert Counties, conservative suburbs south of Denver and was elected as a Republican, joined the Democratic Party today.  Democrats now have 40 out of 65 seats in the state legislature.  

Linked is a lengthy defense by lawyers on behalf of big corporations in the United States that explains to the SEC why they believe that the process by which the directors of large publicly held companies should be shams similar to Soviet style elections.

The deadline for public comment on an SEC proposal to prevent shareholders from forcing corporations to allow them to nominate candidates for the board of directions is tomorrow.  The letter, for all its erudition, is just plain wrong.

Colorado has a law requiring parental notice or a judicial bypass before a minor can receive an abortion.  The first case decided whether a judge properly denied a judicial bypass came before the Colorado Court of Appeals today.

The Colorado Court of Appeals held that the judicial bypass was properly denied in a fact specific ruling explained in depth at Colorado Confidential.  The holding that the facts in the case were insufficient to justify a judicial bypass sets a high standard for obtaining one.

A Colorado trial court has issued a preliminary injunction suspending the operation of a gift ban called Amendment 41 passed by Colorado voters last November, on First Amendment grounds.

Sometime this year, Sarah Morgan will turn twenty-three. She was born with fetal alcohol syndrome. This means that her mother drank too much when she was pregnant and permanently messed up Sarah's brain. Sarah has an IQ of 65. The polite term for this level of intelligence is "mild mental retardation." She has other problems as well that make it very hard for her to function on her own.

Today, the State of Colorado, which has cared for her for most of her life, after her parent's parental rights were terminated, has officially and publicly announced that even though she has "no one to turn to except a public agency like DHS" that it won't provide someone to help Sarah take care of herself anymore.

Speaker of the United States House Nancy Pelosi spoke at the Colorado Democratic Party's annual Jefferson Jackson Dinner this evening. There were a record 1900 or so Democrats in attendance, at one of the most smoothly run events of its kind in party history.

Her speech opened with extensive local color (today, it so happens is the anniversary of passage of the law that made Colorado a state), and recognition for the Colorado delegation of Democrats in Congress in connection with the accomplishments of the first 100 hours of the session.

But, the core of her speech was about Congressional opposition to the Iraq War.

The first line of defense against big business fraud are the accounting firms that big businesses hire to reassure shareholders that their books are honest.  

Now, Conrad Hewitt, the Security and Exchange Commission's chief accountant, and the European Commission, the executive branch arm of the E.U. think "the big audit firms should be given legal protection against claims."  Treasury Secretary Hank Paulson and the Committee on Capital Markets Regulation are also involved in the U.S. effort. The adminisration may plan to try to get around Congressional opposition to the plan by issuing regulations or audit standards that would change audit firm liability.

This is a very bad idea.

One of the things that the President railed against was the tax benefits provided to those with "gold plated" health insurance. The claim is questionable. Health insurance is rarely expensive mostly because it has fewer excluded services. Other causes are behind most high premium health insurance plans.

While I would dearly like to see it happen, I don't think that the Military Commissions Act passed by Congress shortly before the election will be repealed now that Democrats control Congress.  The President would veto that effort, and the Republicans in Congress would vote to sustain that veto.  If we know anything about the President, it is that he loves torture and hates admitting that he was wrong.

What is more viable in the short term?  I think we should have Democrats pass legislation that while not directly and forcefully contradicting the Military Commissions Act, at least, cements legal rights outside of its scope that the administration didn't have the votes to eliminate this year.  This could win bipartisan support and would discourage further encroachments of our liberties.

As the front page reminds us, voting machine problems (whether due to stupidity or malice is unclear) in the 13th Congressional District race in Florida very likely gave the Republican candidate a narrow victory by not counting votes in the race that voters tried to cast, when a majority of those who showed up at the polls and tried to vote in that race actually favored the Democrat.

Litigation might turn this into a revote or a Democratic win.  But, it might not.  Unlike the Presidential election in 2000, the Constitution provides a clear way to resolve this consistent with the voters intent.  The new Congress has the power to resolve disputed elections by majority vote.  The United States Constitution, Article I, Section 5, Clause One, states "Each house shall be the judge of the election returns, and qualifications of its own members . . ."  The Congress that makes the decision is the new one, because election returns are not received until the term of the previous Congress expires.  See Article 1 of the 20th Amendment to the United States Constitution.

Moderate Senate Democratic leader Harry Reid of Nevada has delivered for the Democratic Party base on judges and civil liberties with his judiciary committee appointment decisions.  When Democrats regain control of the U.S. Senate, controversial conservative judicial nominations from President Bush are likely to die in committee.