Men in Black (31 page)

38.
Rasul
, 2004 LEXIS 4760, *23.

39.
The federal judicial system includes district courts, appellate courts, and the Supreme Court. Each district and appellate court is limited in that it can only hear cases or controversies that arise from the court’s physical territory. For example, the Ninth Circuit Court of Appeals, located in the western part of the United States, cannot hear a case that was originally brought in federal court in the Eastern District of Virginia.

40.
Rasul
, 2004 LEXIS 4760, *23.

41.
Ibid., *56.

42.
Andrew C. McCarthy, “A Mixed Bag,”
National Review Online
, June 30, 2004.

43.
U.S. Constitution, Article I, § 9, Cl. 2.

44.
Craig Smith, “Political Communication.” Available at www.csulb.edu.

45.
Ibid.

46.
Ex Parte Merryman
, 17 F. Cas. 144 (1861).

47.
Smith, “Political Communication.” My view is that one branch of the federal government does not have the authority to assume constitutional power from or cede it to another branch. Their powers are derived from the Constitution, not from their own actions. Therefore, with or without congressional approval, Lincoln did not have the authority to suspend the writ of habeas corpus, an exclusively congressional function.

48.
The two are Yaser Esam Hamdi, who was captured in Afghanistan, and Jose Padilla, who was allegedly planning a terrorist attack in the United States.

49.
Executive Order No. 9066 (1942).

50.
Associated Press, “Terror Suspects Told of Right to Use U.S. Courts,” July 12, 2004.

51.
Literally within a few months of the Supreme Court’s
Rasul
decision, two federal district courts conferred additional rights on illegal combatants. Judge Colleen Kollar-Kotelly, a Clinton appointee, ruled that these detainees have a right to a taxpayer-financed attorney to help them file habeas petitions, and to unmonitored consultations with their attorney.
Odah v. United States
, No. 02-828 (D.D.C. October 20, 2004). Judge James Robertson, another Clinton appointee, ruled that Osama bin Laden’s former driver, Salim Ahmed Hamdan, was entitled to a hearing in which the judge would determine whether the executive branch properly designated Hamdan an illegal combatant or whether he should be entitled to more lenient treatment as a prisoner of war.
Hamdan v. Rumsfeld
, No. 04-1519 (D.D.C. Nov. 8, 2004). Both opinions are available at www.dcd.uscourts.gov/district-court-2004.html.

Chapter Nine: Socialism from the Bench

1.
Milton Friedman,
Capitalism and Freedom
(Chicago: University of Chicago Press, 1962. )

2.
U.S. Constitution, Article I, § 8.

3.
Articles of Confederation, Article II.

4.
U.S. Constitution, Amendment IX.

5.
Steven G. Calabresi, “A Government of Limited and Enumerated Powers: In Defense of
United States v. Lopez
,” 94 Mich. L. Rev. 752, 770 (1995).

6.
Gibbons v. Ogden
, 22 U.S.1 (1824).

7.
Ibid., 194.

8.
U.S. v. Lopez
, 514 U.S. 549, 599 (1995).

9.
Railroad Retirement Bd. v. Alton R. Co.
, 295 U.S. 330 (1935).

10.
Ibid., 374.

11.
A.L.A. Schechter Poultry Corp. v. United States
, 295 U.S. 495, 548 (1935).

12.
Ibid., 543.

13.
Ibid.

14.
Ibid., 546.

15.
Ibid.

16.
Carter v. Carter Coal Co.
, 298 U.S. 238 (1936).

17.
Ibid., 238.

18.
Ibid., 308.

19.
Franklin Delano Roosevelt press conference, May 31, 1935. Available at academic.brooklyn.cuny.edu.

20.
U.S. v. Lopez
, 514 U.S. 549, 555 (1995) (citing NLRB v. Jones & Laughlin Steel Corp., 301 U.S., 37).

21.
Wickard v. Filburn
, 317 U.S. 111 (1942).

22.
Ibid., 113–15.

23.
Ibid., 111.

24.
Ibid., 128.

25.
Richard A. Epstein, “Constitutional Faith and the Commerce Clause,” 71 Notre Dame L. Rev. 167, 172–73 (1996).

26.
Maryland v. Wirtz
, 392 U.S. 183 (1968).

27.
Ibid., 194.

28.
Ibid., 195.

29.
Epstein, “Constitutional Faith and the Commerce Clause,” 187.

30.
Perez v. United States
, 402 U.S. 146 (1971).

31.
Ibid., 157.

32.
Michael W. McConnell, “Federalism: Evaluating the Founder’s Design,” 54 U. Chi. L. Rev. 1484, 1494 (1987). McConnell has recently been confirmed by the Senate and now sits on the Tenth U.S. Circuit Court of Appeals.

33.
United States v. Lopez
, 514 U.S. 549 (1995).

34.
Ibid., 567.

35.
U.S. v. Lopez
, 514 U.S. 549, 619–20. Internal citations omitted.

36.
U.S. v. Morrison
, 529 U.S. 598 (2000).

37.
Ibid., 613.

38.
Ibid.

39.
Chris Edwards, “Downsizing the Federal Government,” Cato Policy Analysis No. 515, June 2, 2004, 1.

40.
Bill Steigerwald, “Milton Friedman bemoans a 50 percent socialist U.S.A.,”
Pittsburgh Tribune Review
, April 8, 2001.

41.
Clyde Wayne Crews, Jr., “Ten Thousand Commandments: An Annual Snapshot of the Federal Regulatory State,” Cato Paper, June 28, 2003, 1.

42.
Ibid., 9.

43.
Ibid., 2. U.S. GDP was estimated at nearly $10. 5 trillion for 2002.

44.
Ibid., 6.

Chapter Ten: Silencing Political Debate

1.
George Washington, “Address to officers of the Army,” March 15, 1783. Appears in John Bartlett’s
Familiar Quotations
(Boston: Little, Brown and Company, 1980).

2.
McConnell v. FEC
, 124 S.Ct. 619 (2003).

3.
Texas v. Johnson
, 491 U.S. 397 (1989).

4.
Hill v. Colorado
, 530 U.S. 703 (2000).

5.
Tinker v. Des Moines Indep. Com. School Dist.
, 393 U.S. 503 (1969).

6.
Santa Fe Indep. School Dist. v. Doe
, 530 U.S. 290 (2000).

7.
U.S. Constitution, Amendment I.

8.
Mills v. Alabama
, 384 U.S. 214, 218 (1966).

9.
145 Cong. Rec. S12585, October 14, 1999.

10.
Ibid., S12586.

11.
Ibid.

12.
2 U.S.C. 431 (2002).

13.
U.S. Constitution, Amendment I.

14.
Buckley v. Valeo
, 424 U.S. 1 (1976).

15.
Ibid., 16.

16.
Ibid., 20.

17.
McConnell v. FEC
, 124 S.Ct. 619 (2003).

18.
Prior to the Court’s ruling in
McConnell
, soft money was not subject to federal campaign finance regulation. For example, the Democratic Party expended “soft money” when it conducted “get out the vote” drives. Such activities are now illegal.

19.
Campaign Legal Center. Available at www.campaignlegalcenter.org.

20.
Adam Nagourney, “McCain-Feingold School Finds Many Bewildered,”
New York Times
, February 19, 2003.

21.
Ibid.

22.
McConnell v. FEC
, 124 S.Ct 619, 661 (2003).

23.
Steve Chabot, Hearing Statement of Steve Chabot, “Constitutional Issues Raised By Recent Campaign Finance Legislation Restricting Free Speech,” June 12, 2001.

24.
“A Campaign Finance Triumph,”
New York Times
, December 11, 2003.

25.
“John Kerry for President,”
New York Times
, October 17, 2004.

26.
“Upheld,”
Washington Post
, December 11, 2003.

27.
McConnell v. FEC
, 124 S.Ct. at 706.

28.
Laura Blumefeld, “Soros’s Deep Pockets vs. Bush,”
Washington Post
, November 11, 2003.

29.
“Soros, George and Susan W., Contributions to 527 Committees,” Center for Public Integrity, August 17, 2004. Available at membership.publicintegrity.org.

30.
“Lewis, Peter B., Contributions to 527 Committees,” Center for Public Integrity, August 17, 2004. Available at www.publicintegrity.org.

31.
OpenSecrets.org, “527 Committee Activity, Top 50 Organizations,” December 2, 2004. Available at www.opensecrets.org.

32.
Jan Withold Baran and Barbara Van Gelder, “Sentencing Guidelines Impose Tough New Criminal Penalties,”
Election Law News
, March 2003.

33.
Lorillard Tobacco Co. v. Reilly
, 533 U.S. 525 (2001).

34.
Ibid., 565.

35.
Ibid.

36.
Ibid., 566.

37.
Let me further clarify my position. I don’t have a problem with tobacco advertising per se. My problem is the logic and consistency of the Supreme Court.

38.
Ashcroft v. Free Speech Coalition
, 535 U.S. 234 (2002).

39.
Ibid., 250. Internal citations omitted.

40.
Ibid., 245.

41.
Texas v. Johnson
, 491 U.S. 397 (1989).

42.
Ibid., 419.

43.
George W. Bush, “President Signs Campaign Finance Reform Act,” March 27, 2002. Available at www.whitehouse.gov.

Chapter Eleven: The Court Counts the Ballots

1.
Donald Lambro, “Democrats won’t knock Jackson,”
Washington Times
, December 13, 2000.

2.
“If the returns for any office reflect that a candidate was defeated or eliminated by one-half of a percent or less of the votes cast for such office, that a candidate for retention to a judicial office was retained or not retained by one-half of a percent or less of the votes cast on the question of retention, or that a measure appearing on the ballot was approved or rejected by one-half of a percent or less of the votes cast on such measure, the board responsible for certifying the results of the vote on such race or measure shall order a recount of the votes cast with respect to such office or measure. A recount need not be ordered with respect to the returns for any office, however, if the candidate or candidates defeated or eliminated from contention for such office by one-half of a percent or less of the votes cast for such office request in writing that a recount not be made. Each canvassing board responsible for conducting a recount shall examine the counters on the machines or the tabulation of the ballots cast in each precinct in which the office or issue appeared on the ballot and determine whether the returns correctly reflect the votes cast. If there is a discrepancy between the returns and the counters of the machines or the tabulation of the ballots cast, the counters of such machines or the tabulation of the ballots cast shall be presumed correct and such votes shall be canvassed accordingly.” Fla. Stat. § 102. 141(4) (2000).