[Trey73]

I beg each and every one of you to watch the (truly) Honorable Judge Napolitano expose the tyranny we are facing, and extend a personal challenge to YOU, the generation that MUST defend Freedom and Liberty, lest it perish. 7 minutes.

Don't forget to pray to God to help America in this our hour of need. We're moving down the slippery slope at an alarming rate now.

 

[ptco911]

The judge is outstanding and right on target. We must be prepared to defend our Constitutiona and the Republic.

 

[easy-v]

great vid

 

[elnonio]

He goes a little too far, or not enough, on some points. He talks about how the Founding Fathers (FF) had doctors and hospitals, and would not have dreamed Congress to regulate health care. What the FF did not have, and would not have dreamed of, was powerful insurance companies that interfered with the doctor/client relationship.

In other words, while we often give them quasi god-like status, the FF were bright people, but people nonetheless. They codified some of the things that were dear to them, based upon their immediate experiences often, but they did not have crystal balls. So, to say that the constitution does not mention something (like health care) to support an argument as to why that something is outside the scope of the powers of the government is essentially the same as saying that they foresaw those somethings (health care problems) and made a conscious decision to leave them out. Not plausible.

If the founding fathers did not intend the commerce clause to be used to regulate things like the materials used to manufacture goods, I would also say that they may not have imagined the kinds of environmental abuses unregulated capitalism is capable of, and the sheer scale they are capable of reaching. Think Benjamin Franklin would have condoned environmental abuses? Granted, under common law theories, there would be causes of actions for trespass to chattel and such, but really, isn't it more desirable to prevent the damage through regulation, rather than allow damage to take place, allow the court system to adjudicate fault, and risk companies going down under the weight of the liability? This would result in society (i.e. the government) picking up the tab. All regulation does is put the burden back on the responsible parties (done right, of course. Done wrong, the power to regulate is like the power to tax: the power to destroy; See Marshall in 17 U.S. 327 (1819)).

Next, he talks about the Patriot Act and the two old ladies. He says the judge in the case could not rule the act unconstitutional because the government withdrew the charges. Actually, when a case is capable of repetition and a ruling is desirable, the judge can in fact rule. It's the principle of mootness, and is fairly well established.
Examples (not necessarily the most quoted or persuasive, but I don't currently have Lexis/Nexis access to double check. The Supreme Court case should stand and addresses criminal proceedings):
http://caselaw.lp.findlaw.com/cgi-bin/g ... &invol=147
http://ftp.resource.org/courts.gov/c/US ... -2165.html

More than likely, said Judge was leaned upon by the same government. Not that courageous then was he?

Great, now I've painted myself a bleeding hart pinko commie!

 

[rob_92183]

Don't forget to pray to God to help America in this our hour of need. We're moving down the slippery slope at an alarming rate now.

Reposted the video. Thank you for sharing. And I agree completely.

 

[Trey73]

It is so very rare to see a man of such irreproachable character rise to any position of authority today. "Speaking the Truth in times of universal deceit is a revolutionary act". If Ron Paul and Judge Napolitano are two men who strike you as the type of men that you would would trust with your future, as opposed to the morally bankrupt dregs that care nothing for the blood, sweat, and tears that it took to build this great nation..............Please Join and support Campaign for Liberty in any way possible.

http://www.campaignforliberty.com/

Linked from the topics listed on the following page are a fantastic wealth of resources to get us back on track. Being a concerned spectator isn't enough folks. An educated citizenry is a powerful citizenry...........start reading!!!!
http://www.campaignforliberty.com/education.php

 

[Mac2411]

He goes a little too far, or not enough, on some points. He talks about how the Founding Fathers (FF) had doctors and hospitals, and would not have dreamed Congress to regulate health care. What the FF did not have, and would not have dreamed of, was powerful insurance companies that interfered with the doctor/client relationship.

In other words, while we often give them quasi god-like status, the FF were bright people, but people nonetheless. They codified some of the things that were dear to them, based upon their immediate experiences often, but they did not have crystal balls. So, to say that the constitution does not mention something (like health care) to support an argument as to why that something is outside the scope of the powers of the government is essentially the same as saying that they foresaw those somethings (health care problems) and made a conscious decision to leave them out. Not plausible.

If the founding fathers did not intend the commerce clause to be used to regulate things like the materials used to manufacture goods, I would also say that they may not have imagined the kinds of environmental abuses unregulated capitalism is capable of, and the sheer scale they are capable of reaching. Think Benjamin Franklin would have condoned environmental abuses? Granted, under common law theories, there would be causes of actions for trespass to chattel and such, but really, isn't it more desirable to prevent the damage through regulation, rather than allow damage to take place, allow the court system to adjudicate fault, and risk companies going down under the weight of the liability? This would result in society (i.e. the government) picking up the tab. All regulation does is put the burden back on the responsible parties (done right, of course. Done wrong, the power to regulate is like the power to tax: the power to destroy; See Marshall in 17 U.S. 327 (1819)).

Next, he talks about the Patriot Act and the two old ladies. He says the judge in the case could not rule the act unconstitutional because the government withdrew the charges. Actually, when a case is capable of repetition and a ruling is desirable, the judge can in fact rule. It's the principle of mootness, and is fairly well established.
Examples (not necessarily the most quoted or persuasive, but I don't currently have Lexis/Nexis access to double check. The Supreme Court case should stand and addresses criminal proceedings):
http://caselaw.lp.findlaw.com/cgi-bin/g ... &invol=147
http://ftp.resource.org/courts.gov/c/US ... -2165.html

More than likely, said Judge was leaned upon by the same government. Not that courageous then was he?

Great, now I've painted myself a bleeding hart pinko commie!

Respectfully, I disagree with your analysis on a couple of points.

First, you are correct that the Founding Fathers did not have a crystal ball and thus could not have anticipated every possible happenstance in the future, including the rise of insurance companies. However, that does not mean that Government authority changes with the times. The Founding Fathers anticipated they could not see the future and put the amendment clause into the Constitution to address that "shortcoming." That way, the Constitution could be changed to fit changing times if need be.

The federal government is supposed to be of limited and defined powers. As Judge Napolitano ("JN") points out, nowhere in the Constitition is health care mentioned. Thus, it follows (from this point of view) that the federal government does not have the authority to interfere in the health care industry to the extent it is attempting at this time. Of course, one could argue whether the Commerce Clause or some other source of federal power allows the health care/insurance regulations currently being debated to be passed, but that is another discussion. My point for now is that JN's position is valid from a scholarly/legal perspective.

Second, in your post above you discuss the case JN talks about in the video. The case involved a couple of elderly folks who are prosecuted (persecuted in my opinion if JN's version of the events is correct) for a "violation" of the Patriot Act. The issue was whether the district court judge in that case could have gone ahead and ruled on the constitutionality of the Patriot Act after the government withdrew the charges.

JN takes the position that the government withdrew the charges for the purpose of preventing the district court judge from ruling the Patriot Act was unconstitutional, which implies that once charges were voluntarily dismissed, the district court could not rule on the issue. You take the position that JN is incorrect about that and that the district court judge could have went ahead and ruled on the constititionality of the Patriot Act under the "mootness principle" despite the withdrawal of charges. You cite a couple of cases with links in support of your position. You even go as far as to say that the district court judge intentionally ignored his ability to rule on the constitutionality of the Patriot Act and suggest it may have been because he was coerced by the Government into doing so.

There a couple of things incorrect with your position. In the first place, the principle you are referring to is not "mootness." When an issue is moot, it is incapable of being ruled upon because it is no longer a real controversy. What you are referring to is a narrow exception to the mootness rule, which leads me to the more important next point.

The two cases you cite not only do not support your position that the district court judge could have gone ahead and ruled on the constitutionality of the Patriot Act after the Government dismissed the charges, they undermine your position-if not outright contradict it. The Supreme Court defined a narrow class of situations where the courts can rule on issues that are moot. As stated in the cases you cited, the situation at issue must be "capable of repetition, yet evade review."

In your cases, the Court points out that such situations frequently arise in class actions. Thus, that is one of the types of cases in which the doctrine can be used. The criminal prosecution JN discusses is not a class action. In your cited cases, the Court goes not to state that "in the absence of a class action, the 'capable of repetition, yet evading review' doctrine is limited to the situation where two elements combined: (1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again." Neither element applies to the criminal prosecution JN discusses.

The issue had full opportunity to be litigated in the criminal prosecution and was litigated right up until the Government voluntarily dismissed the charges. Further, there is no reasonable expectation the defendant will be subjected to criminal charges again for the same action. As the Court points out, "a mere physical or theoretical possibility" is insufficient to trigger the doctrine. Rather, there must be a "reasonable expectation" or a "demonstrated probability" that the same controversy will recur involving the same complaining party. The case JN discusses is not one of those cases. Sure, the Government could charge this woman again, but hypothetical isn't good enough according to your cases.

In short, if the cases you cited are good precedent (and I think they are), they undermine your own argument. I've not reasearched this issue in years, but my recollection right now is that the other cases I've read also undermine your position. Thus, I think JN was right and you are not on this issue. I urge you to construct your argument more carefully before essentially accusing a federal judge of giving in to imroper coercion. I'm also surprised that you did not seem to closely read the cases you cited given your claim on these boards that you are an attorney. (I'm not questioning your claim, only pointing out my own surprise).

Discussing what I see as wrong with your Commerce Clause position would only add volumes to this already long post so I'll leave that alone. Suffice it to say that I believe that the Government long ago exceeded its authority under the Commerce Clause. (Of course, the Supreme Court made that possible beginning in the 1930's).

 

[elnonio]

In your cases, the Court points out that such situations frequently arise in class actions. Thus, that is one of the types of cases in which the doctrine can be used. The criminal prosecution JN discusses is not a class action. In your cited cases, the Court goes not to state that "in the absence of a class action, the 'capable of repetition, yet evading review' doctrine is limited to the situation where two elements combined: (1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again." Neither element applies to the criminal prosecution JN discusses.

The issue had full opportunity to be litigated in the criminal prosecution and was litigated right up until the Government voluntarily dismissed the charges. Further, there is no reasonable expectation the defendant will be subjected to criminal charges again for the same action. As the Court points out, "a mere physical or theoretical possibility" is insufficient to trigger the doctrine. Rather, there must be a "reasonable expectation" or a "demonstrated probability" that the same controversy will recur involving the same complaining party. The case JN discusses is not one of those cases. Sure, the Government could charge this woman again, but hypothetical isn't good enough according to your cases.

Certainly, in my attempt to quickly provide a rebuttal, I shortened the name oif the principle under which the judge could have continued. You still understand the underlying principle.

As I also pointed out, the cases cited were just two quick examples that describe the theory. Whether you think there is no reasonable chance of prosecution is the question here. After all, it was unreasonable in the first place to bring the ladies to court. On that basis alone, the brave judge could have decided to proceed despite the charges being dropped.

The second prong, whether there can be a class action, is an interesting area here, where the judge could have seized the opportunity. If these warrants are as described (have not seen one nor have I looked up the PA) then there are two sorts of peoples whose rights are violated: the subject of the investigations, and the people served with those warrants. And, considering the terms of the warrants, it sounds like the likelihood of a class coming together is slim since discussing the warrants is the very thing that lands you in court. Sounds like the exceptions to mootness would be ripe for review, and a determination as to whether the strict class action interpretation is open to abuse by the government to prevent review, exactly as was the case.

Again, just a quick response before heading to work.

 

[Mac2411]

In your cases, the Court points out that such situations frequently arise in class actions. Thus, that is one of the types of cases in which the doctrine can be used. The criminal prosecution JN discusses is not a class action. In your cited cases, the Court goes not to state that "in the absence of a class action, the 'capable of repetition, yet evading review' doctrine is limited to the situation where two elements combined: (1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again." Neither element applies to the criminal prosecution JN discusses.

The issue had full opportunity to be litigated in the criminal prosecution and was litigated right up until the Government voluntarily dismissed the charges. Further, there is no reasonable expectation the defendant will be subjected to criminal charges again for the same action. As the Court points out, "a mere physical or theoretical possibility" is insufficient to trigger the doctrine. Rather, there must be a "reasonable expectation" or a "demonstrated probability" that the same controversy will recur involving the same complaining party. The case JN discusses is not one of those cases. Sure, the Government could charge this woman again, but hypothetical isn't good enough according to your cases.

Certainly, in my attempt to quickly provide a rebuttal, I shortened the name oif the principle under which the judge could have continued. You still understand the underlying principle.

As I also pointed out, the cases cited were just two quick examples that describe the theory. Whether you think there is no reasonable chance of prosecution is the question here. After all, it was unreasonable in the first place to bring the ladies to court. On that basis alone, the brave judge could have decided to proceed despite the charges being dropped.

The second prong, whether there can be a class action, is an interesting area here, where the judge could have seized the opportunity. If these warrants are as described (have not seen one nor have I looked up the PA) then there are two sorts of peoples whose rights are violated: the subject of the investigations, and the people served with those warrants. And, considering the terms of the warrants, it sounds like the likelihood of a class coming together is slim since discussing the warrants is the very thing that lands you in court. Sounds like the exceptions to mootness would be ripe for review, and a determination as to whether the strict class action interpretation is open to abuse by the government to prevent review, exactly as was the case.

Again, just a quick response before heading to work.

That's fine that you made a quick response-we've all been there. That said, your latest response also appears to have been "quick" because it does not hold water.

The key is not "whether there is no reasonable chance of prosecution." The cases you cited to "describe the theory" directly contradict that position. The "key" is whether there is a "reasonable expectation" or a "demonstrated probability" that the same controversy will recur involving the same complaining party. The Court, in the cases you cited, states that the mere possibility that the same controversy involving the same complaining party will arise again is insufficient. There mere possibility that this woman might be prosecuted again under the same theory is just that, mere possibility. It is purely hypothetical. That's not good enough to fulfill the standard. Thus, that exception to the mootness doctrine does not apply. The district court judge could not, under existing law, "decided to proceed despite the charges being dropped" without an exception to the mootness doctrine applying. I'm sorry, but you're just wrong on that point.

Regarding what you describe as the "second prong," the case at issue was a criminal prosecution. It was not a class action and never will be. Your post seems to show a misunderstanding of the concept of a class action. This criminal prosecution could never be converted to a class action and the folks challenging the constitutionality of the statute were not members of any class. Thus, that possible exception simply does not apply.

In the end, the district court judge and JN were correct that the dismissal of the charges made the issue of the Patriot Act's constitutionality moot.

 

[elnonio]

The funny thing is that the very arguments you make as to why this issue will continue to evade review (it does not fall under class action because it is criminal, and it is not likely to recur with the same defendants because arguably the prosecutor will have learned who to prosecute) is precisely why the judge could should have considered the issue using the mootness exception. Just because the defense attorney was not willing/wanting to make a name for him/herself by carving a new issue for the appeals court to review and press the issue, the judge could have sua sponte raised the issue.

Oh, wait, that's judicial activism. As for the cases to not support my argument, like I said, those were examples of when a judge can act even though the issue is moot. Does the ladies case fall squarely within the exception? No. Can the same rationale be used to extend the exception to this sort of cases? In my opinion, yes.

Obviously I'm no Con Law scholar (nor do I claim to be) but last time I checked, one can always argue why a precedent either does not apply or should be reversed. Happens often enough. And like I said as well, I don't have access to either Lexis or Westlaw to verify that the status of those precedents or to do research this thoroughly.

The point I'm trying to make here is that this area seems to be a good one to redefine the existing principle behind mootness and when the courts should be able to decide cases that would otherwise be moot even though they do not fit the exception as it stands now.

Another quick response while I wait to get my pre-deployment shots,

 

[Trey73]

Umm.......... the digression into technical aspects of the court precedings aside, why in the hell is the FBI serving secret warrants you can not even discuss with legal counsel, and arresting two elderly librarians for one handing a piece of paper to the other, probably due to poor eyesight rather than contempt for the agents authority. Is this Moscow circa 1980?

Also, without being an expert in the law, I can tell you with the utmost confidence that the Founding Fathers did not envision free citizens to be forced to pay for the medical needs of non-American citizens such as illegal aliens. They intended for the Federal Government to have the absolute minimum imprint possible on our lives.

Also I have no problem believing that many Federal Judges are easily coerced as clearly evidence by many absurdly Orwellian laws that are upheld under their review.

 

[elnonio]

Umm.......... the digression into technical aspects of the court precedings aside, why in the hell is the FBI serving secret warrants you can not even discuss with legal counsel, and arresting two elderly librarians for one handing a piece of paper to the other, probably due to poor eyesight rather than contempt for the agents authority. Is this Moscow circa 1980?

Because Congress passed a law giving them the power to do so. I don't mean this as me talking down to you, because you know this. The FBI, on this one, can't be said to have exceeded their authority inasmuch (and as long) as they followed the statute. Of course, the oathkeeper type argument would have FBI agents refuse to take part in using the PA.

That Congress passed such a statute, and how, maybe a tougher question. But, sorry to get on my soap box again, the one that gets to me is that the final safety check, the courts, this judge, did not take a stand when faced with this situation; MAC2411 and I will have to agree to disagree as to whether the judge had a choice.

Also, without being an expert in the law, I can tell you with the utmost confidence that the Founding Fathers did not envision free citizens to be forced to pay for the medical needs of non-American citizens such as illegal aliens. They intended for the Federal Government to have the absolute minimum imprint possible on our lives.
/quote]

I agree in part, that's exactly why it's ludicrous to argue that if something is not literally named in the constitution, it's off the table. I disagree in that I think the FF would have a slightly different concept of immigration than we do. Remember, they were all immigrants themselves.

 

[Trey73]

That was more of a rhetorical question, I wasn't really looking for a response. I wipe my ass with the Patriot Act. It is clearly evident to millions of Americans that the Patriot Act has little to do with protecting Americans, and more to do with implementing these Orwellian systems of monitoring and control. I would rather risk dying at the hands of towelheads than see America become this technocratic police state where everyone is assumed to be guilty at all times. I have already read about NUMEROUS cases where people have been charged with "terrorism" under the Patriot Act for things that are not even remotely related to terrorism.

 

[elnonio]

I have already read about NUMEROUS cases where people have been charged with "terrorism" under the Patriot Act for things that are not even remotely related to terrorism.

You heard of those and weren't arrested on the spot?! Stand by!