Gaming the Courts

Not a Free Pass

For those who read here, you know that I remain opposed to the death penalty. Not because killers don’t deserve it, but because I don’t trust our legal system not to execute the innocent. Still, the left wing press (redundancy alert) is up in arms because today is the day that Florida executes an 80 year old man. The press is claiming that it’s cruel to execute a disabled 80 year old.

He wasn’t 80 when he was convicted and sentenced 50 years ago. The man has delayed his punishment with appeal after appeal for five decades. While I am opposed to the death penalty, what we have now is a farce, with inmates spending 30, 40, and even 50 years abusing the court system. The government can abuse the legal process, but so can criminals.

If you are going to have a death penalty, there should be a limit to the number of appeals. Put all of your appeals into one motion that must be considered and ruled upon at once. Five year limit.

By Divemedic, ago

Wickard

In the first half of the 20th Century, the Supreme Court stretched the intent of the Constitution beyond all recognition. The historical shift that permanently expanded federal power occurred during the New Deal Era (1937). Before that point, the Supreme Court strictly limited Congress by drawing sharp lines between “local” production (like manufacturing, farming, and mining) and “interstate” commerce (the actual shipping of goods).

Frustrated by repeated legal defeats, President Roosevelt proposed the Judiciary Reorganization Bill of 1937. This plan would allow him to add up to six new, sympathetic justices to the Supreme Court. While Congress rejected the plan, the threat of packing the Court heavily pressured the sitting justices to rule his way more often. Justice Owen Roberts, a supposedly conservative justice, shifted his vote in a landmark labor case, creating a new majority that favored the expansion of Federal power. The new lever that allowed the Federal Government to insert it’s abnormally large nose into everyone’s affairs was the commerce clause.

The Constitution grants the Federal government the power to regulate commerce through the “commerce clause.” The Commerce Clause refers to Article 1, Section 8, Clause 3 of the U.S. Constitution, which gives Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian Tribes.”

As with many things, they use the commerce clause to get their hands on powers they otherwise wouldn’t have. There were a few cases involving the commerce clause that came before it, but the one doing the most damage to state’s rights was Wickard v. Filburn (1942). I’ve blogged on this case a couple of times. That case concerned a farmer that was growing wheat for use on his own farm. He contended that he was not subject to the limits that the Federal Government had placed on wheat production, because his wheat was not sold, so it could not be regulated as commerce, let alone “interstate” commerce (described in the Constitution as “Commerce… among the several states”). The Supreme Court disagreed. They held that because he was growing his own wheat, he did not buy wheat from someone else. Since he did not buy someone else’s wheat, this affected interstate commerce and made his wheat subject to the regulations.

This court case basically says that the Feds can rule over anyone they please, without worrying about enumerated powers. All they have to do is play “six degrees of separation” to show that the behavior they wish to dictate affected interstate commerce in some way, no matter how tenuous.

The reason I bring this up today is because Justice Thomas’ concurrence in United States v. Hemani, in which he urged courts to reconsider the constitutional foundation of federal law. Thomas argued that goes too far, writing the Commerce Clause authorizes Congress only “to regulate the buying and selling of goods and services trafficked across state lines,” not “activities wholly separated from business, such as gun possession.”

This is an opinion that anyone with half a brain could see, what the gun ban crowd calls “common sense.” If I carve a toy out of wood and give it to my child, I didn’t affect interstate commerce, but those who would increase Federal powers would say it does. The same goes for making my own firearm at home, or for a felon who possesses a firearm. None of those activities affect interstate commerce, and are thus state law issues and none of the Federal government’s business.

“Congress cannot regulate the possession of every thing that ever traveled across state lines,” Thomas wrote, warning that such an interpretation risks converting Congress’ limited commerce authority into “a general police power of the sort retained by the States.”

Judge Stephen Higginson said striking down Section 922(g) would be “a significant departure from existing, settled, and binding Commerce Clause jurisprudence” and could “mark the start of a new, severely contracted Commerce Clause era.”

“Can the federal government no longer criminalize possession of child pornography? Of explosive materials? Of biological weapons?” Higginson asked. “Past the Title 18 level, do we lose regulations on financial transactions? On intellectual property? On endangered species?”

If the financial transactions, intellectual property, or child pornography crosses state lines, then yes, the Federal government may criminalize it. If not, then that would be up to the states. No one is saying these things shouldn’t be illegal- I am saying that it should be up to each state to make their own laws.

That’s what is meant by a Republic- each member of the republic retains its own identity.

By Divemedic, ago

Luck of the Draw

A judge in Wisconsin was arrested and charged with obstruction for helping an illegal immigrant escape ICE. The felony conviction resulted in a slap on the wrist, despite the fact that the woman remained unrepentant, claiming it was the right thing to do.

“This is a situation where an otherwise good person upset by immigration enforcement in this country, a sentiment widely shared, made a bad decision in the moment,”

My yardstick is the amount of time spent in jail by those who simply walked through the Capitol after the police let them in, and this woman got no jail time for using her official position to aid a criminal act. Why? The judge who heard the case was the most liberal in the district, and one lawyer said:

Talk about luck of the draw! Following indictment, the Dugan prosecution was randomly assigned to Judge Lynn Adelman. Judge Adelman, age 85, is the most liberal judge in the Eastern District of Wisconsin and maybe one of the more liberal judges in the US.

But is it really? It seems like every time the left has a case that is important to them, it gets assigned “randomly” to a friendly, liberal judge. Or in this case, do you think it was just judges protecting their own?

By Divemedic, ago

Men and Women

We have been having a lively conversation about child support and paternity. A comment here made me want to write a complete post as a story and possible warning from my own past:

The one thing that I have always been poor at, is in romantic relationships with women. I did have a girlfriend once who told me that it was because I am a professional rescuer in every sense of the word, and she told me that because I feel the need to rescue everyone, some women will take advantage of that. I’m not sure if she is right, but a string of failed relationships does tell a compelling story.

One of those relationships was as big of a mess as you could ever imagine. This one was the one and only time that I dated a woman who had children. She had two of them, and about 3 months after we began dating, I let her move in with me because she and her two kids had nowhere else to go. I helped her out in a lot of ways. I let her use my second car, I provided her with a cell phone on my account, and treated her children properly. A few months later, we broke up, but she kept my car and my cell phone. Then she sued me for child support.

So it turns out that we had dated for a year and a couple of days before breaking up, and there is a law that says if a man acts like a father to children that aren’t his for a year or more, but that man is the only father figure these children know, the court can consider what is in the best interests of the children and can compel him to visit, spend time with, and pay child support for the children. The theory is called parentage by estoppel. Under the doctrine of parentage by estoppel, a court can order a non-biological man to pay child support if:

  • He knew he was not the biological father.
  • He held himself out or acted as if her were the child’s father
  • The child relied on that representation, forming a parental bond and treating him as a father.

This is applied in narrow circumstances, often in stepparent or long-term partner situations. A year or more of acting as the only father figure can support such a finding. Once established as a legal or equitable parent, support obligations can follow even after separation. So that’s what she tried to do.

In my case, she told the court I was abusing her, so she wanted child support and also a domestic violence injunction. That way, I wouldn’t get other parental rights like visitation or joint custody, but I would still have to pay child support. It took me a year to get out of that mess. You can read about much of the case here. I resolved to never again date a woman who had a child.

I made the mistake of telling the story to another girlfriend, and she tried doing the same thing, just minus the child support. It was also a mess. The only good thing with this one is that she was stupid and I only had to deal with it for about a month. I can certainly understand the idea of men not wanting anything to do with women. Thanks to our court system, relationships with women are something that is fraught with danger.

By Divemedic, ago

Twenty Years

The community note on this tweet is wrong.

Let me explain. Child support is based upon the sum of the incomes of both parents. There is a chart and a formula. So let’s say that the father has two jobs. One where he works for the fire department, and a second job where he works as a janitor at a theme park. The mother claims to be working 20 hours per week as a bartender making $6 per hour. The child support is calculated and they take 70% of the father’s income for the couple’s two kids, but aren’t taking any of the income from his second job. The amount being taken is still less than 60% of dad’s total income, so they are below the Federal limit.

I would guess that’s what is happening here. The $163 the man is left with is the income from his first job, and he also has income from a second job. The example I used above wasn’t bullshit- that’s what happened to me when I was paying child support. It’s what actually made me homeless. The judge didn’t care. When I told him the money they were leaving me wasn’t enough to survive on because it wasn’t even enough to pay rent, the judge said “Get a second job.” When I pointed out that I already had two jobs, his reply was, “Well, get a third job, then.”

So you do that, and guess what? Now you are making more money, meaning that your child support increases again. It was impossible to get ahead. When I had one job, I was paying $700 per month in child support. I was forced to live on $700 per month. I got a second (part time) job, the wife went back to the judge, and my support went up to $900 per month. But hey, now I had $900 per month to live on.

How was my wife making it? She didn’t have a job. She had $700 per month in child support, $400 worth of food stamps, $300 in earned income credit, $200 per month in WIC, and $300 worth of welfare, plus she was getting $750 a month babysitting two children while their parents were at work. She netted a total of $2650 a month. Yeah, she got half of whatever I was making, plus she got to keep all of her money AND collected all kinds of government assistance money.  That is the equivalent of grossing over $40,000 a year. Meanwhile, I was living below the poverty level on what was left. It is easy to see why many men become “deadbeats.” The child support system is fundamentally unfair, and there is no mechanism in place to ensure that the money actually supports the child.

They take the money right out of your paycheck before you get it. Some men work under the table or drift from job to job to avoid paying. That doesn’t really work. If you try that, they take your professional licenses away. Good luck making a living at anything other than minimum wage without a license. Still, some men work at their own business or have help working under the table. Those men get their passports and driver’s licenses taken. The debt accrues and never goes away, not even in bankruptcy. Eventually, they will toss you in prison if you aren’t paying.

I always knew that my ‘child support’ was going to support their mother, not the kids. That is why things like this always make me angry, when I think about how women use their children to ride the gravy train, while their fathers get accused of being ‘deadbeat dads’ because they can’t afford to pay.

As soon as the kids turned 16, she threw them out of the house and had them live with me. First my son, and a year later, my daughter. As soon as it was no longer profitable, they were unceremoniously thrown out.

She still plays the game to get your tax dollars. Right after the first kid was thrown out, she got a job at WalMart as a cashier, and ‘injured’ her back soon thereafter. She now collects Social Security Disability and collects survivor benefits because the man she married after me passed away. To this day as far as I know, my ex-wife has never had a job her entire adult life other than that one year working at Wal Mart. Now that all three of her kids (2 from me, 1 from the dead guy who came next) are grown and out of the house, she lives in a doublewide trailer near Gainesville with her now elderly mother. Between them, they collect more than $5500 per month in SS benefits.

It’s been twenty years since I last paid child support. It still pisses me off. America’s new class of entrepreneurs are young women having children out of wedlock, or they marry a guy, have a kid, then divorce him, and collect. It may or may not even be his kid. Most people who work for a living actually make far less money than America’s new entrepreneurs. Forget college, the average college graduate only makes $44,000 a year upon graduation after 4 or more years of college. By the age of 20, a young woman can be making more than that with almost no effort, all she has to do is get pregnant a few times.

By Divemedic, ago

Mom, he’s looking at me

The Chicago Cubs are suing a bar located near their stadium, because the bar isn’t paying the Cubs for allowing their customers to look at the team while they play baseball. The team is claiming the rooftop bar is misappropriating the team’s property rights because the bar is selling admission to the bar and allowing patrons to watch Cubs games from that vantagepoint. It looks like the courts are going to side with the team. In the meantime, the city is investigating the structural integrity of the roofs, issuing citations to those in danger of collapse. I’m sure those investigations are totally legit and were in no way sponsored or encouraged by the billionaire team owner.

Money talks, I guess.

The Ricketts family, billionaire owners of the Cubs, began purchasing the nearby rooftop properties in order to control the marketable sight lines into the stadium and by the end of the 2016 season, owned (or controlled via agreement) 11 of the 13 rooftop locations that had a view into the nearby baseball field. Wrigley Rooftop is one of the two that has thus far refused to sell.

I don’t care what the court says, if I can see it from my property, then you have no claim to force people to pay for looking at it. This will open all sorts of legal maneuvering. If my neighbor can see into my yard, can I sue him for watching me swim in my pool?

If the Cubs don’t want people in nearby tall buildings watching them play, perhaps they should build a dome. I’m sure they can get taxpayers to foot the bill. After all, teams build sports ball complexes at taxpayer expense all the time. For example, the Tampa Bay Rays are getting a Billion dollars of taxpayer money to build their new stadium, even while the local governments of the state are assuring the taxpayers that property taxes are totally needed to fund things everyone agrees are needed- things like firefighters, police, schools, and roads: “The money we take in from property taxes totally is being used for needed services and is in no way being used to fund billion dollar sports complexes. The money going to build places of business for billionaires to pay millionaires to play children’s games is totally coming from a different line item that was totally taken from taxpayers in a different way, so it doesn’t count.”

If that doesn’t work, perhaps the team could try the Scooby Do method and pay someone to dress a ghost in order to force the owners to sell.

Meanwhile, the shortstop for the Rays is being paid $182 million to play baseball. Jason Heyward is being paid $184 million to play the game by the Cubs. Meanwhile, the bar in question (Wrigley Field Rooftop Bar) is estimated to be making $1 million a year.

This is one of those times where a billionaire is doing something immoral to make more money, and the government shouldn’t be getting involved. Government should not be in the business of picking winners and losers. Remember, when the legislature decides what can be bought or sold, the first thing to be bought and sold are the legislators themselves.

By Divemedic, ago

There Goes the Jury Box

Florida passed a law making it illegal for illegal immigrants to enter the state. A Federal judge in Miami issued an order barring the state from enforcing the law, citing the supremacy clause, making the claim that only the Federal government can enforce immigration laws. When the Florida Attorney General told the court that law enforcement agencies weren’t subject to the order, the judge found him in contempt.

The courts are just as partisan and biased as the rest of the nation, and are becoming illegitimate as a result. The orders you get depend on the political stance of the judge in question, and not on the Constitution. I can prove it. Ask this same judge to put out an order telling the states that due to that same supremacy clause, no state can enforce any gun laws, because there are Federal gun laws. Likewise, drug laws, laws against murder, etc.

We all know what would happen.

By Divemedic, ago

Law Is Dead

U.S. District Judge Kathleen Williams in Miami has ruled that Florida’s law making it illegal to enter the state as an illegal immigrant violates the Supremacy clause and is prohibiting state enforcement of the law. The states, according to her, cannot have any immigration laws because the Feds already have them.

OK. I will accept that.

That also means that the states can’t enforce any gun laws. Or drug laws. Or laws on murder, kidnapping, or any other laws. In fact, let’s just get rid of the states. Make them political subdivisions of the Federal whole.

We know that isn’t what she and the rest of the activist judiciary want. If a case making the claim that California’s gun laws violated the supremacy clause were to come before one of these judges, it would be summarily dismissed. This isn’t about the Constitution or the law. It’s about twisting things to fit your side. Note that so called sanctuary states and cities haven’t had the same treatment.

We are living in a time when the law is nothing more than a tool to be used to get what you want.

By Divemedic, ago