Update no.441

Update from the Heartland

No.441

24.5.10 – 30.5.10

Blog version: http://heartlandupdate.blogspot.com/

To all,

Memorial Day 2010

Lest we forget . . . may God bless those who have given “their last full measure of devotion” to this Grand Republic and the cause of freedom.

The follow-up news items:
-- As the annual Defense appropriations bill works its way through Congress, most of the public attention is fixated on an important but minor provision – the potential repeal of the “Don't Ask, Don't Tell” policy, passed as part of the National Defense Authorization Act for Fiscal Year 1994 [PL 103-160] [312, 408]. President Obama has reportedly agreed to a compromise between lawmakers and the Defense Department that removes a key obstacle to the repeal of the military's 17-year-old ban on non-heterosexuals serving openly in the armed forces.
-- More information trickles out regarding the crash of the Polish Air Force Tupolev Tu-154 on approach to Smolensk, Russia, killing the Polish President, his wife, and 95 other Polish leaders, dignitaries, guests and the crew. [434] The Polish envoy to the investigating committee confirmed that the Commander-in-Chief of the Polish Air Force, Lieutenant General Andrzej Eugeniusz Błasik, was in the cockpit of the plane a few minutes before it crashed. No evidence has been released, as yet, to indicate direct pressure on the crew to land at Smolensk; however, the mere presence of the chief air force officer can be implicit pressure given the mission of the flight.

President Obama intends to request US$500M of additional funds for border security and wants to deploy an additional 1,200 National Guard troops to the southern border. The move carries the appearance of an accommodation as the President seeks general immigration reform later this year. Immigration reform during a mid-term election year may prove to be more difficult than health care reform.

This week’s installment from my judicial reading list comes from the Supremes – United States v. Comstock [560 U.S. ___ (2010); no. 08-1224]. My interest in this case rises beyond the immediate subject or details of the case. The root essence of the case is the fundamental constitutional question – Federal authority versus state sovereignty versus individual rights. The Court barely mentioned the context of the citizens or crimes involved, and I have no particular interest in doing so either, except as applicable to a salient collateral point below. Let it suffice to say, the named respondent – Graydon Earl Comstock, Jr. – was convicted of and served a three-year sentence for receiving child pornography; he had also been convicted of “other [unspecified] sex crimes” in Kansas. Five men, including Comstock, were subjects (respondents) of this case. Only one of the five – Shane Catron – was charged with aggravated sexual abuse of a minor, but he had been declared mentally incompetent to stand trial. All five were declared “sexually dangerous persons” under a Federal law, the Adam Walsh Child Protection and Safety Act of 2006 (Adam Walsh Act) [PL 109-248], under which the government sought indefinite confinement, as the State of North Carolina declined responsibility for their civil incompetency commitment. The Adam Walsh Act added the dimensions of child pornography and violent sexual crimes to the Insanity Defense Reform Act of 1984 [PL 98-473] that broadened the government’s indefinite civil commitment capability after the acquittal of John Warnock Hinckley, Jr. for his assassination attempt on President Reagan. The Comstock case has numerous levels of interest to all of us, beyond the inapplicability of the crimes involved. The Supremes cast their attention on a key and salient provision of the U.S. Constitution – Article I, Section 8, Clause 18 – the Necessary and Proper Clause – which reads: “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” Despite the weight of the 7-2 Comstock decision, I think the dissent got the law correct. Associate Justice Clarence Thomas wrote for the dissent, to which Scalia joined. Thomas noted, “No enumerated power in Article I, § 8, expressly delegates to Congress the power to enact a civil-commitment regime for sexually dangerous persons, nor does any other provision in the Constitution vest Congress or the other branches of the Federal Government with such a power. Accordingly, §4248 can be a valid exercise of congressional authority only if it is ‘necessary and proper for carrying into Execution’ one or more of those federal powers actually enumerated in the Constitution.” He concluded, “In sum, the enumerated powers that justify a criminal defendant's arrest or conviction cannot justify his subsequent civil detention under §4248.” Nonetheless, the Court expanded Federalism and the authority of the government to impose its will upon individual citizens. The law is interesting, but the implicit substance behind the law offers better material for public debate. Numerous questions come to mind. What is it about or why do we insist upon punishing crimes involving sex inordinately more harshly than virtually any other crime? Why should a sex criminal be subjected to indefinite incarceration by the State? Are there not other criteria necessary for continued confinement of convicts after they have served their debt to society? Why should we allow the Government such broad latitude to classify a citizen as a sexually dangerous person? Some zealous prosecutor can ruin the life of any citizen he chooses, as just the accusation of such acts will irreparably taint a citizen’s reputation and life. Unfortunately, as with so many well-intentioned laws like the Adam Walsh Act, the interpretation of what exceeds the threshold of the law can vary quite broadly depending on the attitudes and beliefs of the prosecutor . . . not particularly different from the discretion of the clerics administering the Inquisition during the Dark Ages.

News from the economic front:
-- U.S. existing-home sales climbed 7.6% during April from the previous month, as buyers apparently took advantage of the last month of the Obama administration's home-buyer tax credit. Concern remains that the housing market will falter without the government support. If so, then it is a correction that must take place.
-- Germany’s Finance Ministry proposed extending and expanding the country’s ban on some “naked” short selling. The expanded ban goes beyond the prohibition of naked short-sales of certain financial stocks imposed last week. The proposal would prohibit the short-selling of credit default swaps on euro-zone debt without ownership of the debt obligation and of euro currency derivatives not meant for hedging.
-- The Commerce Department reported U.S. incomes rose 0.4%, helped by a gradual turnaround in the jobs market and low inflation. Americans saved more of their income in April, leaving spending flat.

Comments and contributions from Update no.440:
Comment to the Blog:
“I share your worry at the creation of a new cell by a corporation. I read less science than I once did, but the possibilities are staggering and I share your concern about unregulated corporate greed in this context.
“North Korea is arguably the most dangerous nation in the world. That they seek publicity less than Iran and others makes them more dangerous, not less so. Those in charge apparently don't concern themselves with whether human history continues, much less with their own place in it if it does continue.
“The financial cost of the oil leak in the Gulf of Mexico has far exceeded the cap on BP's obligation and/or their platform operator's. (But not exceeding BP's first-quarter profit.) The spiritual, emotional and business-opportunity costs are incalculable. Who will pay this? Most likely, all of us who pay taxes. Certainly the people living in the Gulf Coast states. Possibly BP's customers and shareholders may take a hit, but don't count on that.
“Other action is due as well. At the very least, the Minerals Management Service must be replaced or drastically revised. The idea that they were performing their regulatory job has been disproven, and their job matters a great deal. Research in alternative fuels not subject to such disasters continues and needs more support; that is the long-term solution.”
My response to the Blog:
I worry that George W. Bush’s ban on embryonic stem cell research and the concomitant absence of the Federal government from that important research endeavor [146] may have opened Pandora’s Box – never to be closed again. I still advocate for this research, however I strongly believe it should be conducted in the public domain with tight restrictions and regulation for the good of all humanity . . . not just the profits of a few enterprising scientists using a myriad of protections.
I would agree with your assessment of the threat that the DPRK represents, especially with the alleged declining health of Grand Dear Leader Umpa-Lumpa. Yet, I still believe the Islamic Republic of Iran is the single greatest threat to World peace; the IRI has demonstrated a consistent and persistent propensity to project violence across the globe over several decades.
The aggressiveness of BP and the USG will undoubtedly define the future of offshore oil exploration and mining, if it has not already beyond recovery. Despite the tragedy and destruction of this accident, I remain convince offshore drilling is necessary and required. Hopefully, this event will help the industry and the regulators produce better safety equipment and contingency plans.
Clearly, the incestuous relationship between the USG’s Minerals Management Service and the oil industry has not been good for We, the People, or this Grand Republic. Equally clearly, we must wean ourselves off of fossil fuels. We need petroleum for a variety of non-fuel purposes. I continue to espouse alternative, renewable, energy sources.

My very best wishes to all. Take care of yourselves and each other.
Cheers,
Cap :-)