Blog Archives

Legal versus Constitutional (and does it matter?)

When the time is right—whenever that may be—expect another major media drop on America’s surveillance state, which has been much described as a legal endeavor which is well worth its modest privacy encroachment. In the meantime, the Administration appears to be working hard in order to get out in front of the likely media release:

… Michael Hayden told TPM yesterday that the NSA probably knows by now exactly what data Snowden has in his possession and therefore what leaks are still to come. Maybe that forced the agency to reveal more than they initially wanted to in their briefings this week with Congress: If they withheld something and then the world found out thanks to Snowden,, a lot of angry senators and representatives would want to know why they were kept in the dark.

(Nine tech companies have already been tagged as Prism players, so will the outrage go off scale when we find out about the rumored 50 participants?)

So even if this is all legal, does anyone think just because a law is in place, it’s congenitally Constitutional, desirable, justified, supported, and/or necessary?

(And what are we to think when someone, say a chief justice in a 5-4 ruling, turns himself into a political pretzel in ruling on Barack Obamacare in order to avoid being tarred as “political”?)

An obvious truth is no one believes the executive branch, the legislature, and the judiciary always get things right. After all, not even the President, the very face of the government leviathan, believes this, witness his outrage—staged or real—with regard to Citizens United.

So the lesson, assuming there is one, can be reduced to this: our government is composed of flawed people who make flawed decisions based on… what? The time of day, self-interest, glycemic level, mood, eternal truths, expediency, and naked politics all come to mind. But the more resources the government controls and the less transparent their activities, the greater the opportunity for misbehavior, whether great or small.

And since many view the Constitution as a mere guide, which is “living and breathing,” does it really matter a source of truth?

The oath of office requires the individual to practice fidelity to the Constitution. So if the Constitution is in a constant state of redefinement, what is the individual really honoring?

And in the end, who should be trusted to run our lives, the ruling class (that is, the vast government bureaucracy like the IRS, the Justice Department, the surveillance state, etc.) or its citizens?

IMHO, Bill Buckley has never looked more prescient.

Continuing Obama Administration Lawlessness

In the face of impending budget sequestration set to maul the Department of Defense (and the defense industry), the Obama Administration has said—through OMB—that the government will cover all the costs of defense contractors who violate the WARN Act.

It’s all remarkably reminiscent of getting an Obamacare waiver (assuming you’re on the correct team), except this is a violation of the law.

And what is the WARN Act? In a nutshell, it’s this:

The Worker Adjustment and Retraining Notification Act (WARN) protects workers, their families, and communities by requiring most employers with 100 or more employees to provide notification 60 calendar days in advance of plant closings and mass layoffs.

WARN Act notifications are supposed to go out 60 days in advance of mass layoffs, which is just what the defense industry is facing with sequestration. That 60 days would be about a week before the general election. Is this a nakedly political act of extra-legal malfeasance?

(Cue Scooby Doo voice) Absorootreigh.

The political goal is transparent—let the sleeping dog of up to 1 million layoffs lie—but the legal disconnect is significant: the Administration lacks the authority to make such a promise in violation of the Constitution. (However, it should be noted this is not the first timeor the second time—the Administration has chosen to ignore the law.)

Meanwhile, Lockheed Martin has already decided to cave and not sent the required WARN Act notifications.

Lockheed Martin—and the rest of the defense industry—are in a tough spot: if they don’t comply with the Administration their programs could be marked in the next President’s Budget (assuming an Obama victory); they might worry about programmatic payback as a result of their non-compliance (assuming a Romney victory); either an Obama or a Romney Administration might not honor this bogus promise; finally, non-presidential politicos (with professional and personal staffs and having the authority to mark fiscal legislation) have memories as well.