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Patriot Act Declared Unconstitutional by Federal Judge

I want you to imagine the following scenario with me, please.

The Patriot Act has passed. It’s been in effect for a year or so and George W. Bush is ramping up for full enforcement of its provisions. The Librarians have filed a lawsuit against the Bush Administration, alleging the Act is an unconstitutional infringement on our right to be free of unlawful search and seizure. They’ve not been fond of the Act from the beginning, you know, even joining with the ACLU to protest gov’t actions under the Act.

During the trial, the Bush administration argues that the Library Search provisions are inherently necessary to the Act and that it can’t function without them. Congressional action seems to reinforce that interpretation, as the Act passed the House with a severability clause, but the Senate version stripped it out. The House later adopted the Senate version, leaving the final law without the customary clause stating that if any part of the Act was declared unconstitutional, the remainder of the Act would remain in full force and effect.

The Federal Judge, in considering the case, determines that the contested part of the Patriot Act does, indeed, overstep the government’s legitimate Constitutional limits and he issues a declaratory judgment against the Bush administration. Everyone anticipates that the Bush administration will request a stay of the judgment pending appeal, but the request never materializes.

Several weeks pass, during which time the administration continues with the implementation of the Patriot Act as if the ruling had never occurred, President Bush comes back to the same Federal Judge and requests that he “clarify” his ruling, as he is unable to understand it.

Stop right there. Can you just hear the wailing and gnashing of teeth? The leftists by now have been rioting non-stop over the evil Bushitler and his imperial Presidency.

He’s so dumb he doesn’t even understand a judge’s ruling when it’s written in plain English; when every sentient being in the press and Washington, D.C. can understand it.

The judge comes back with his clarification, and it reads, in part:

While I believe that my order was as clear and unambiguous as it could be, it is possible that the defendants may have perhaps been confused or misunderstood its import. Accordingly, I will attempt to synopsize the 78-page order and clarify its intended effect. To that extent, the defendants’ motion to clarify is GRANTED.

[synopsis snipped]

So to “clarify” my order and judgment: The individual mandate was declared
unconstitutional. Because that “essential” provision was unseverable from the rest of the Act, the entire legislation was void. This declaratory judgment was expected to be treated as the “practical” and “functional equivalent of an injunction” with respect to the parties to the litigation. This expectation was based on the “longstanding presumption” that the defendants themselves identified and agreed to be bound by, which provides that a declaratory judgment against federal officials is a de facto injunction. To the extent that the defendants were unable (or believed that they were unable) to comply, it was expected that they would immediately seek a stay of the ruling, and at that point in time present their arguments for why such a stay is necessary, which is the usual and standard procedure. It was not expected that they would effectively ignore the order and declaratory judgment for two and one-half weeks, continue to implement the Act, and only then file a belated motion to “clarify.” [FN6]

[FN6] The defendants have suggested in reply to the plaintiffs’ response that the reason for the delay was due to the fact that my order “required careful analysis,” and it was only after this “careful review” that the defendants could determine its “potential impact” with respect to implementation of the Act (see doc. 164 at 11). This seems contrary to media reports that the White House declared within hours after entry of my order that “implementation will proceed apace” regardless of the ruling. See, e.g., N.C. Aizenman and Amy Goldstein, U.S. Judge in Florida Rejects Health Law, Washington Post, Feb. 1, 2011, at A01 (quoting a senior White House official).

While the above is a 100% make-believe scenario, it is exactly where we are with regard to the Obama Administration and lawsuits concerning Obamacare.

Twenty-six states have sued the administration, alleging that the individual mandate is unconstitutional and a Federal judge has agreed, issuing a declaratory judgment against the administration. At this point, President Obama should have either requested a stay pending appeal or ceased implementing Obamacare. What did he do? Pretended like the ruling never happened.

Now the administration has asked the judge to go over it with them one more time, because they’re not at all sure that they heard him right the first time.

The judge’s understandable disdain for the disingenuous request of the Obama administration is made strikingly clear. And our mortification at the administration’s contempt for our rule of law and the judicial system should be every bit as deep.

The administration has every right to appeal this ruling. Everyone knows this case will end up before the Supreme Court and the decision will hinge on whether or not Anthony Kennedy has indigestion or sufficient sleep the night before, or some other equally inane basis for his vote. But the administration does not have the right to simply pretend that the judge is an insignificant lackey in our system of government, undeserving of the respect of his office.

I’m amazed that none of the Presidential advisors have yet seen fit to explain to him that we have three co-equal branches of government and that his best interests will not be served by treating one of those branches as if it were powerless. Even his liberal cohorts on the bench will not likely take kindly to that threat against their fiefdom, because, after all, they are in office for the rest of their lives, while he likely has less than two years to go.

If you want to read more about this ruling and its ramifications in an excellent post, I first read of it at Ace of Spades Headquarters.

Queen Hotchibobo
I was born in Saginaw, Michigan, and I grew up in a house on Saginaw Bay. My daddy was a poor, hardworking Saginaw fisherman. Too many times he came home with too little pay. Naw, not really, but it sounds more interesting than the real bio, so there you are.

8 COMMENTS

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8 COMMENTS

  1. Congratulations to UP and QueenH for getting on this quick with the correct take on it. This may have been the most far reaching import of a headline this week though the LibMedia completely missed- ignored it and our own side didnt seem ready with a fast wave cheer around the stadium to let the other side know it really, really was bad news for Obama and Holder. This federal judge is now torqued at -0- and he is giving them a *very* short time fuse to file appeal or start shutting down the Act. I read his clarification, and I would have to say he seems about one more disrespective motion from -0-‘s team, from sanctions or a string of mandatory orders. I am almost hoping -0-s legal team tries to get “cute” with him one more time. If I were a state officer charged with carrying out policy in FL, it would be clear already the correct thing to do is stand down carrying out the act now lest your employees and you incur sanctions or incarceration. As a matter of prudence whether you be Dem Repub Libertarian or Ind, right now one does not carry out an act held unconstitutional by a federal judge with jurisdiction over your agency – just step aside and let it go to the big boys (SCOTUS). I can even imagine SCOTUS was not impressed with -0-‘s request to clarify. It was impudent, and we know Alito and Kennedy have not appreciated -0-s impudence on occasions past.

    • First, it’s great to see your insights and comments over here, CJ! Welcome to the house!

      And second, you nailed a couple of points dead on. The Won and Holder are so used to getting there way that it’s probably beyond their comprehension that “No” actually means…well, ya know…”No!”

      But your most cogent point came at the end. I think anyone who watches the court knows that there will be 4 votes to rule HCRA unconstitutional and 4 votes that is it’s okie-dokie (Kagen by every stretch of judicial ethics should recuse herself but ‘ethics’ and ‘radical left’ are seldom used in the same sentence). That means that Kennedy will ultimately decide the fate of this.

      I’m pretty sure that Anthony didn’t appreciate being mocked on national television for the Citizens United ruling, and I’m thinking that every time Zero and Holder thumb their nose at the judicial branch, Kennedy becomes more and more likely to smack this down out of spite if nothing else.

    • Hi cactusjack- Glad to see that you kicked the tires, checked under the hood, took her for a test ride and decided to jump in. The welcome here for everyone has been so warm and cozy, eburke will even bring you your slippers as you sit a spell. You do have to remind him about the pipe once in a while though. LOL

      I agree with all you wrote, and I especially like where you added how the O admin. hasn’t been on the best of terms with the SCOTUS, or at least some of them. The idiotic calls for Justice Thomas to recuse himself on the Ocare Act is nothing more than trying to get in front of the valid and necessary call for Kagan to recuse herself. My pennies worth.

        • Thanks for the welcome. This is a nice looking site. I can’t figure out the thumbs up thumbs down thing though, is UP editor going to post some rules or intentions on how to use them? I must admit I was curious to see whose site (among others as well as UP) would get to this story first , and with a cogent explanation. UP won the race.

          • I’ve mostly seen thumbs up. It means that I like your comment but don’t have anything pertinent to add that would be sufficient to justify making my fingers type.

            OTOH, the thumbs down actually functions as a ‘take a hike’ function. If someone is acting like a jerk, and we hit the thumbs down, three of them send the comment into the great beyond.

            So, if I right now decided to say something really snotty and snide, you could thumb down me and if two other people saw it the same way, it would disappear from the post.

            P.S. Thanks for the compliment! 🙂

  1. Congratulations to UP and QueenH for getting on this quick with the correct take on it. This may have been the most far reaching import of a headline this week though the LibMedia completely missed- ignored it and our own side didnt seem ready with a fast wave cheer around the stadium to let the other side know it really, really was bad news for Obama and Holder. This federal judge is now torqued at -0- and he is giving them a *very* short time fuse to file appeal or start shutting down the Act. I read his clarification, and I would have to say he seems about one more disrespective motion from -0-‘s team, from sanctions or a string of mandatory orders. I am almost hoping -0-s legal team tries to get “cute” with him one more time. If I were a state officer charged with carrying out policy in FL, it would be clear already the correct thing to do is stand down carrying out the act now lest your employees and you incur sanctions or incarceration. As a matter of prudence whether you be Dem Repub Libertarian or Ind, right now one does not carry out an act held unconstitutional by a federal judge with jurisdiction over your agency – just step aside and let it go to the big boys (SCOTUS). I can even imagine SCOTUS was not impressed with -0-‘s request to clarify. It was impudent, and we know Alito and Kennedy have not appreciated -0-s impudence on occasions past.

    • First, it’s great to see your insights and comments over here, CJ! Welcome to the house!

      And second, you nailed a couple of points dead on. The Won and Holder are so used to getting there way that it’s probably beyond their comprehension that “No” actually means…well, ya know…”No!”

      But your most cogent point came at the end. I think anyone who watches the court knows that there will be 4 votes to rule HCRA unconstitutional and 4 votes that is it’s okie-dokie (Kagen by every stretch of judicial ethics should recuse herself but ‘ethics’ and ‘radical left’ are seldom used in the same sentence). That means that Kennedy will ultimately decide the fate of this.

      I’m pretty sure that Anthony didn’t appreciate being mocked on national television for the Citizens United ruling, and I’m thinking that every time Zero and Holder thumb their nose at the judicial branch, Kennedy becomes more and more likely to smack this down out of spite if nothing else.

    • Hi cactusjack- Glad to see that you kicked the tires, checked under the hood, took her for a test ride and decided to jump in. The welcome here for everyone has been so warm and cozy, eburke will even bring you your slippers as you sit a spell. You do have to remind him about the pipe once in a while though. LOL

      I agree with all you wrote, and I especially like where you added how the O admin. hasn’t been on the best of terms with the SCOTUS, or at least some of them. The idiotic calls for Justice Thomas to recuse himself on the Ocare Act is nothing more than trying to get in front of the valid and necessary call for Kagan to recuse herself. My pennies worth.

        • Thanks for the welcome. This is a nice looking site. I can’t figure out the thumbs up thumbs down thing though, is UP editor going to post some rules or intentions on how to use them? I must admit I was curious to see whose site (among others as well as UP) would get to this story first , and with a cogent explanation. UP won the race.

          • I’ve mostly seen thumbs up. It means that I like your comment but don’t have anything pertinent to add that would be sufficient to justify making my fingers type.

            OTOH, the thumbs down actually functions as a ‘take a hike’ function. If someone is acting like a jerk, and we hit the thumbs down, three of them send the comment into the great beyond.

            So, if I right now decided to say something really snotty and snide, you could thumb down me and if two other people saw it the same way, it would disappear from the post.

            P.S. Thanks for the compliment! 🙂

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