Thursday Highlights

So, -8 F here this morning. Seems like the weather is returning to that pattern of a few years ago, of about a week of bitter cold with occasional warming spells during which snow is dumped on us. #2 daughter opted to be dropped off at school instead of walking.

  1. This person seems to have more difficulty with their child’s choice than might be expected.
  2. I’d have to support the Att. Gen. decision if honest (even though I disagree with his conclusion), you have two choices when electing an official, that you want him to guess and vote/act according to his perception his constituents, or the constituents should expect evaluate him and expect him to vote/act according to his conscience. Back in the day, Mr Kerry claimed he did the former. I think the former is not right.
  3. More Benghazi lies. First “it was the video” canard, now it was the Ambassador’s fault. Geesh.
  4. We’ll be seeing lots of posts of this sort on this anniversary. Liberals often like to base civic ethics on Rawls and “they are to be of the greatest benefit to the least-advantaged members of society” … somehow they pretend that the fetus is more advantaged, has a louder/stronger voice in society, and more empowered than the mother. That illogical twist fuels much wickedness.
  5. One more, “abortion allows women … to fulfill their dreams”. Say what? Little girls dream of many things, few dream of killing their child. I mean, I’ve joked with my daughter’s about embarking on the career path of “evil genius” and that they should practice their “evil laugh” but they just roll their eyes at me when I do that. Perhaps the President has the same joke and his daughter’s take him seriously. Hmm.
  6. Revenge ala Christie claimed. I wouldn’t put it past the Admin.
  7. So, in those states with legal marijuana … apparently the illegal street price is lower than the legal price. So, what besides taxes might cause that? Perhaps the FDA has a hand in raising those prices too.
  8. Hacking and gas.
  9. Another Obamacare suit which may have  legs.
  10. More on the min wage.
  11. Obama’s NSA speech (which apparently was roundly panned) graded here.

 

23 responses to “Thursday Highlights

  1. Re #2, An Attorney General takes an oath to uphold the Constitution first, the state Constitution second and associated laws that have been passed third. Only then can he act on behalf of ‘the will of the people’. If an AG concludes an anti-SSM law has been found or is unconstitutional, then he must decide not to defend it in court.

    #3 concerns the Senate report on Benghazi, which essentially concluded it was ‘preventable’. I pointed out to my Godson, who also wanted to make much of this report, why was this report issued after Benghazi? Seriously, instead of issuing a report titled ‘Benghazi could have been prevented’ why didn’t the Senate issue a report days/weeks/months before titled “We must prevent an attack on Benghazi”? After all, if it’s so obvious then the Senate, which has oversight responsibility, should have picked up on defects in security/protocols/intelligence/whatever just as much as anyone else should have. Otherwise what you have is just a hindsight document. If we could go back in time, these reasonable steps could have prevented Benghazi.

    so we not so much have a lie (BTW, it turns out the video was clearly a motivating factor in the attack, suggest you review the NYT investigation of this if you haven’t already) as a not very helpful observation. Kind of like “gee little girl, if only your dad called in sick on 9/11 he’d be here today”. A statement that might be totally true but also totally useless in providing any helpful guidence.

    Re 4 and 5, reproduction is the domain of women. Unless/until you invent the artifical womb or find a way to genitically engineer men to carry children, it’s not about ‘abortion is a woman’s dream’ as much as it’s her responsibility/jurisdiction.

    #6 Christie a victim of revenge? Hahahah! By whom? supposedly Christie helped Obama in the re-election and Obama is no friend of Hillary in terms of her potential election so the motivation for revenge would be pretty unclear. That plus the fact that Christie admitted it. He essentially said that his staff misued political power to try to force favors or promises from local politicians. Well no he only said that about the GWB incident, but he said he was kept in the dark about it. So if his staff did that once what reason do we have to believe it was the first and only time they did it?

    As for the link, I’m unclear why ratings agencies shouldn’t be sued to death by the Federal gov’t. Millions of consumers have essentially had to pay millions to these agencies for them to more or less do the equilivant of declaring the Titanic unsinkable a day *after* it hit the iceberg.

    7.So, in those states with legal marijuana … apparently the illegal street price is lower than the legal price. So, what besides taxes might cause that? Perhaps the FDA has a hand in raising those prices too.

    FDA isn’t allowed to regulate tobacco and technically since marijuana is illegal on the Federal level the FDA has no real say in states that have “legalized” it. The FDA, I believe, would only be involved if you wanted to conduct a clinical study with it and that’s not really relevat to the market.

    So why would the street price be lower? Taxes are a huge piece of it, just like there are black markets for tobacco, booze even gas at below market prices because it’s the taxes that are being avoided. Another factor might be the ebay/amazon used books effect. You ran out and spent $30 to by the last Harry Potter book because your daughter ‘needed’ it the day it came out. Now she doesn’t care about it so you try to sell it and discover you can’t fetch more than $5 for it. Why? Because there’s lots of people with ‘leftover’ books who’d like to convert them back into cash. There’s fewer people who buy them…hence prices are a lot lower.

    Who is buying pot ‘from the street’ in these states? There’s probably some teens who can’t get it legally, other than that maybe some people who don’t want to make the trip to a licensed retail location. On the other hand there’s a lot of illegal pot suppliers and the legal stores probably have dedicated contracts with farms to supply their shelves. The illegal suppliers could:

    1. Ship their product out to states where it’s still illegal – but this runs the risk of capture by law enforcement and spoilage of the product.

    2. Sell it locally at a cut rate price.

    If this theory is true, I’d predict that over time you’d see the illegal supply shrink and prices rise so that the only differences could be solely explained by dodging taxes.

  2. Boonton,

    FDA isn’t allowed to regulate tobacco ..

    Actually they do. So why do you think they do not/will not regulate marijuana?

    So why would the street price be lower? Taxes are a huge piece of it …

    Which was also my suggestion.

    Who is buying pot ‘from the street’ in these states?

    Those who are not, ala Krugman, one of the 1%ers. That is to say, those for whom price is a consideration.

    If this theory is true, I’d predict that over time you’d see the illegal supply shrink and prices rise so that the only differences could be solely explained by dodging taxes

    Actually the article does not state that the street price has dropped but that the street price was lower than the price in the shops. So … if the street price is pretty much unchanged but also lower than the shop/legal prices … why would you expect the illegal supply to price to shrink?

    Re your #6 remarks … I never claimed Christie a victim of revenge … the accusation is that the acts by his people were acts in revenge for political moves during Christie’s election, i.e., his revenge, not him as victim. #6 is about S&P and the admin taking revenge on them. But apparently you feel extra legal revenge would be just fine.

    Re #4 and #5, and child rearing is the domain of parents, but killing your children is illegal, but by your argument that is wrong. Oops. Try again. Who is the weakest? Who has less voice, the mom or the fetus?

    Re #3 … uhm …. did you read the piece? The problem with the report and investigation is that is wrong on basic matters. Why do you think it can be trusted at all after that? Oh, wait, it tailors to your expectations. And you still cling to the video. Riiiight. Flags served as rallying points in wars. Flags are not the cause of wars. You fail to understand the distinction.

  3. Boonton,

    An Attorney General takes an oath to uphold the Constitution first, the state Constitution second and associated laws that have been passed third. Only then can he act on behalf of ‘the will of the people’. If an AG concludes an anti-SSM law has been found or is unconstitutional, then he must decide not to defend it in court.

    Clearly a fan of jury nullification. Who has standing to challenge the AG? Courts judge what is and what isn’t Consitutional …. someone must then have standing so the point can be judged.

  4. Clearly a fan of jury nullification. Who has standing to challenge the AG? Courts judge what is and what isn’t Consitutional

    You seem to not understand the difference between the Executive and Judicial branch. Juries are part of the Judicial Branch, the AG is the chief prosecutor. AG’s do not declare laws unconstitutional hence there is no need for that decision to be ‘challenged’. A court, hearing a challenge to a law’s constitutionality, can decide the law is constitution even if the Executive branch thinks it is unconstitutional.

  5. Boonton,

    AG’s do not declare laws unconstitutional hence there is no need for that decision to be ‘challenged’. […] A court, hearing a challenge to a law’s constitutionality, can decide the law is constitution even if the Executive branch thinks it is unconstitutional.

    You just claimed that the AG should not prosecute laws they believe to be un-Constitutional. My point was is and is not Constitutional is often disputed and that what the AG things should be Constitutional might be in dispute. My question is how does one challenge (in court) a AG’s decision to “not prosecute” a particular law. The AG does not prosecute everything. They have some discretion. However I think you notion that an AG has the right to pick and choose which laws it should uphold is beyond the scope of their office. Unless, as noted yesterday, this is how we can do away with the 14th and retrieve my ideas of locale sovereignty and thereby save the union.

  6. Boonton,
    I guess that means if an FDA officer decides a drug law is un-Constitutional they can ignore it, or a IRS agent decides a tax is not Constitutional they can opt not to enforce. Geesh that kind makes the Constitution a little more pliable than we normally think it might be.

    So if you are not prosecuted for infanticide because the AG thinks if abortion is legal (or Constitutional) so is infanticide (as you argued yesterday), who has standing to sue? The infant is dead, she can’t. The neighbor has no standing. In the absence of grandparents, who is left to speak for the dead? Nobody it seems has any standing to sue in that case.

  7. Actually they do. So why do you think they do not/will not regulate marijuana?

    OK fair point, however their regulation is essentially limited to the warning label and additivies. They are not allowed to regulate tobacco as they would food or drugs. If they were, then they would have to ban it. If Pepsi made a new drink that did what tobacco does it would never make it to a store shelf.

    Technically the FDA does regulate marijuana. It’s totally banned except for use in very limited studies which have to get prior approval. States that legalize pot are essentially ignoring the FDA and Federal law.

    Those who are not, ala Krugman, one of the 1%ers. That is to say, those for whom price is a consideration.

    But whose the suppliers? Sure sure, there will always be people who are happy to buy something at a deep discount, that doesn’t make a market price unless you get people willing to supply at that price as well.

    In NJ there was a Russian mob who was running a scam with gas stations. They would open a station, buy gas wholesale and sell it to the public without paying the taxes. When the gov’t started getting wind and sending out notices, the station would shut down and reopen a few weeks or months later with a different name.

    Interestingly they sold the gas for only a little bit less than the normal market price, not a deep discount. They obviously wanted to unload as much gas as possible as quickly as possible but they weren’t stunningly cheap as a gas station. If people in NJ buy gas for $3.13-$3.40 a gallon they might have sold for $3.10. Why? Well why not pick up money people are willing to spend? Who cares if you weren’t paying $1 in taxes on the gas, why give the consumer the gas for $2.13 when you could pocket that dollar per gallon on top of your normal profit.

    I suspect the problem suppliers in ‘legal’ states have is simple. They have an illegal product and buyers now have a legalish way to buy it. Their other choices are either move the product to a place where it’s totally illegal and commands a premium (which is risky) or sit on it (which they can’t do because it’s a crop that will begin to rot).

    So … if the street price is pretty much unchanged but also lower than the shop/legal prices … why would you expect the illegal supply to price to shrink?

    Because illegal suppliers will pull out of the market. As supply contracts the illegal price will rise. It will probably remain lower, though, because not paying the taxes gives illegal suppliers a way to compete with legal ones.

    #6 is about S&P and the admin taking revenge on them. But apparently you feel extra legal revenge would be just fine.

    Except S&P essentially defrauded the public. Why shouldn’t the law come down on them? If they feel that the only reason they are being prosecuted is because they downgraded their rating of US Treasury debt, then they could use the First Amendment as a defense.

    Re #4 and #5, and child rearing is the domain of parents, but killing your children is illegal, but by your argument that is wrong

    Children have already been born, child rearing is a shared domain of parents and society (i.e. if you don’t feed your kids, social services hopefully comes and takes them away to someone who does). Reproduction is the domain of women because of biology (and I suppose the will of God if you go for intelligent design and you’ll note that in Christian theology even God deemed it necessary to enter the world of men through a woman….not, say, descending from a cloud or something as you might see in mythology or fairy tales).

    Re #3 … uhm …. did you read the piece? The problem with the report and investigation is that is wrong on basic matters.

    You’re referring to the Senate report that claims the attack was preventable. It’s absolutely true, and it’s also absolutely true the Ambassador could have avoided getting killed by playing it safer. It’s also true fewer people would have been killed on 9/11 if they had opted to call out of work or come in extra late. It’s easy to get to lots of things that are true, the question is do they get to useful truths.

    Which is why I pose this very simple question, why is the Senate report about Benghazi being preventable? if this was so obvious why didn’t the Senate issue the report *before* Benghazi and title it something like “If we act now, we can prevent a problem in Benghazi!” Do you have any answer other than the investigators have the benefit of hindsight after the event? If not then there’s not much in the way of useful truths.

    And you still cling to the video. Riiiight

    You are aware that Libyians basically use Egyptian TV and radio for their news and entertainment? You are aware that for at least a week prior to the attack Egyptian clerics were chewing up the airwaves with rants about the video? You are aware that the prime suspect in leading the attack is an eccentric militia leader who despised the US because he felt it was anti-Muslim? Sarcasm only works as a stand alone argument if you’re Christopher Hitchens, and sadly there was only one Hitchens and it ain’t you.

  8. I guess that means if an FDA officer decides a drug law is un-Constitutional they can ignore it, or a IRS agent decides a tax is not Constitutional they can opt not to enforce. Geesh that kind makes the Constitution a little more pliable than we normally think it might be.

    The AG deciding not to make a legal argument in favor of a law is not the same as deciding to not enforce a law. In fact, sometimes the AG may not only decline to defend a law but may even argue himself against it. For example, Presidents have questioned the Constitutionality of the War Powers Act since it was enacted. If it ever came down to a court case it’s likely a President’s AG would argue to the S.C. that it was unconstitutional. Remember some laws are passed over the veto of the Executive and sometimes Executives veto laws

    So if you are not prosecuted for infanticide because the AG thinks if abortion is legal (or Constitutional) so is infanticide (as you argued yesterday), who has standing to sue?

    No one. You’re mixing up civil suits for torts with the criminal system. In a civil suit you, a private party, are suing another private party claiming they did some damage (tort) to you and asking to be awared damages. Obviously someone can wrong you but you could decide that would rather not sue them. In criminal cases the state is suing ‘on behalf of the people’. Just as you can decide not to sue even if you have a case, the gov’t can and does often decide not to prosecute even though they may have a case. That’s just the way it is.

    In some countries private parties can access the criminal system. For example, in many Arab countries the family of a murder victim can initiate criminal charges against the murderer. Likewise in the US there is limited ability for citizens to initiate private charges against people (for example, you can charge someone with running a red light and bring the complaint to municiple court). But for felonies the state generally has a monopoly on the criminal system.

    So yes the Executive decides whether or not to bring criminal cases in individual cases just like the Executive decides whether to go for the max. penalty or agree to plea bargain to lower ones.

  9. It’s interesting that you’re focused on AG’s not defending laws about SSM when the really interesting question in this topic is pot legalization.

    Both recreational and medical pot that are legal at the state level remain illegal at the federal level. The FBI has every legal right to raid all the distribution hubs and prosecute them. The Fed. gov’t has essentially decided to not prosecute…yet…probably because they are sympathetic to letting this run as an exerpiment. But those ‘businesses’ that are entering the market are doing so on very shakey grounds legally. Unless Congress passes a law specifically giving states the right to opt into a system of legalized pot the policy can be shifted without any notice at all.

  10. Boonton,

    The AG deciding not to make a legal argument in favor of a law is not the same as deciding to not enforce a law.

    I’m unclear on the distinction.

    If it ever came down to a court case it’s likely a President’s AG would argue to the S.C. that it was unconstitutional.

    It’s my understanding that to argue a case in any court you need standing, i.e., must be directly affected by the law in question.

    Seems to me, if an AG things a law is un-Constitutional the actual method for him to challenge the law is indirect. That is, he must find a defendant with the willingness and ability to challenge and then prosecute that person. As per his office, he is then bound to make the strongest case he can against the defendant (and not as you suggest, fail to argue or argue on behalf of the defendant as you suggest).

    So yes the Executive decides whether or not to bring criminal cases in individual cases just like the Executive decides whether to go for the max. penalty or agree to plea bargain to lower ones.

    Yes. And you suggested that it if the Executive feels the law is not Constitutional he should not bring this criminal cases forward even if the law explicitly calls that out a illegal. This is what you suggested and what I suspect is incorrect.

    So yes the Executive decides whether or not to bring criminal cases in individual cases just like the Executive decides whether to go for the max. penalty or agree to plea bargain to lower ones.

    So then, if a AG decides laws against infanticide are unConstitutional … he should not prosecute by your argument, or prosecute but not actual “make any argument” against the defendant. That seems to be your position.

  11. Boonton,

    Interestingly they sold the gas for only a little bit less than the normal market price, not a deep discount. They obviously wanted to unload as much gas as possible as quickly as possible but they weren’t stunningly cheap as a gas station. If people in NJ buy gas for $3.13-$3.40 a gallon they might have sold for $3.10. Why? Well why not pick up money people are willing to spend? Who cares if you weren’t paying $1 in taxes on the gas, why give the consumer the gas for $2.13 when you could pocket that dollar per gallon on top of your normal profit.

    Not “interestingly” it’s what you’d expect. Why leave money on the table. Half the price of gas is tax, so by slightly undercutting the normal price they have glut of buyers. Similarly for the marijuana, if half the price is tax, the illegal seller needs only to drop his price to the market’s resistance to non-legal purchase, which in many states is probably not very high. After all the cops aren’t going to go after the buyer on the basis of “it’s illegal” but that you’re avoiding taxes. You no longer are chased by the police but by the IRS, which (so far) has a smaller enforcement arm. Why would supply contract if you’re selling product? Economically speaking there is no reason.

    Sure sure, there will always be people who are happy to buy something at a deep discount, that doesn’t make a market price unless you get people willing to supply at that price as well.

    Doesn’t have to be “deep” as you noted.

    They are not allowed to regulate tobacco as they would food or drugs.

    Sure they can. You can’t sell a “new” tobacco product without approval. What do you think regulation means anyhow?

    States that legalize pot are essentially ignoring the FDA and Federal law.

    Heh. Exactly. Guess you can bypass the 14th. Who has standing for suit?

    You are aware that Libyians basically use Egyptian TV and radio for their news and entertainment? You are aware that for at least a week prior to the attack Egyptian clerics were chewing up the airwaves with rants about the video?

    Still a pretext. Seriously, why are the cleric’s ranting? Cui bono? Could there be coordination between their ranting and some militia leader who got intelligence reports that the Marines had largely left the embassy support? You apparently “can’t imagine” (fallacy remember) that anyone might be working this the other way, “we need a little anti-US rally/riot to strengthen our hold on power and to provide cover for an attack being planned, … hey Ali … got anything? The US infidels are always good for something? Whattya got?” Ali: “Well, there’s this 6month/old YouTube by some Copt who hates us. How about this?” Reply: “Ok. We’ll run with it.” Look, in the absence of the video, why do you think they wouldn’t just scrape up something else? Oh, wait. I know why, that kind of thinking is too far off script. Remember, the flag or rallying cry is not the cause. Anti-Jewish propaganda was not the cause of the Holocaust.

    You’re referring to the Senate report that claims the attack was preventable

    Nope. I’m pointing as erroneous the part in which Stevens was blamed for the reduction in personnel. Claims that the “attack was preventable” are clearly bogus on examination. You don’t control enemy actions.

    It’s also true fewer people would have been killed on 9/11 if they had opted to call out of work or come in extra late.

    Or, more plausibly, if the communications between agencies wasn’t intentionally blocked, … who authored that idea anyhow?

  12. I’m unclear on the distinction.

    Let’s say the Feds raid a medical maijuana distribution house. They are tried and convicted. The owners argue in Federal appeals court that since they were not engaging in interstate commerce the law used to prosecute them is unconstitutional. The prosecutor is free to let this argument be presented without defending the law. The court is free to find the law constitution despite the lack of an argument from the prosecutor. Sometimes the S.C. will actually appoint a person to make an argument they want heard. Or 3rd parties will file ‘friend of the court briefs’ making arguments that are not made either by the gov’t or the defendent.

    Now imagine the prosecutor decides pot offenses take too much time to handle for so minor a sentence. They adopt a policy of accepting either plea bargains or dropping the charges if the defendant insists on taking it to trial unless there’s some other crime involved. This falls under prosecutorial discreation and has always been a privilege of the Exec. branch.

    It’s my understanding that to argue a case in any court you need standing, i.e., must be directly affected by the law in question.

    To raise the case you need standing. So you can’t sue to overturn an anti-SSM law simply because you think it’s unconstitutional. But if you show it impacts you in some way you have standing. However appeals courts do entertain ‘briefs’ whereby interested parties present the courts with arguments even though they have no direct standing to sue.

    That is, he must find a defendant with the willingness and ability to challenge and then prosecute that person.

    This would apply to a criminal law. Although if you felt, say, the law agaisnt pot was unconstitutional you could probably sue even if you weren’t yet charged with anything. In the case of SSM you more likely have a lawsuit against the gov’t asking for an injunction agaisnt enforcing a law or rule on the grounds it’s unconstitutional. In that case the person raising the lawsuit still must prove his case even if the AG declines to present an argument in the laws favor.

    So then, if a AG decides laws against infanticide are unConstitutional … he should not prosecute by your argument, or prosecute but not actual “make any argument” against the defendant.

    The original jurisdiction would be the jury trial, I suspect an argument of unconstitutionality would be made either to an appeals court or to the court before trial via a writ of habaes corpus. But then if the AG decided the law was unconstitutional why would he be brining criminal cases based on it?

  13. Boonton,

    Children have already been born, child rearing is a shared domain of parents and society (i.e. if you don’t feed your kids, social services hopefully comes and takes them away to someone who does).

    After a certain age this is true. It is, however, not true for the first year or so. Try again.

  14. Boonton,

    To raise the case you need standing. So you can’t sue to overturn an anti-SSM law simply because you think it’s unconstitutional. But if you show it impacts you in some way you have standing.

    Right. So if an AG decides on his own not to prosecute because he feels a law is unConstitutional who has standing. Take an AG who feels like abortion, infanticide is Constitutional in the first 6 months. Who has standing to prosecute the killing of an infant? There is no “appeal” because there is no case. This is my point. Who has standing in a case where no case was brought because of the urges of the AG. And this argument you use for discretionary application of law by the Executive, is I think un-Constitutional. This is not the normal means by which the Executive challenges Constitutionality. He doesn’t bring abstract cases to appeals courts, Law requires a concrete not abstract case. You don’t have cases labeled AG vs Constitution.

    Let’s say the Feds raid a medical maijuana distribution house.

    The AG is a state official. How is he involved?

    The original jurisdiction would be the jury trial, I suspect an argument of unconstitutionality would be made either to an appeals court or to the court before trial via a writ of habaes corpus. But then if the AG decided the law was unconstitutional why would he be brining criminal cases based on it?

    Why? Because it is the law. As I said, I think the route an AG needs to take if he feels a law is un-Constitutional is to bring as an early case, a defendant with the will and means to appeal.

  15. Right. So if an AG decides on his own not to prosecute because he feels a law is unConstitutional who has standing.

    No one. If you feel that anti-pot laws should be rigerously enforced, your options are to run for office or support someone who promises to put more effort into enforcing them.

    Take an AG who feels like abortion, infanticide is Constitutional in the first 6 months. Who has standing to prosecute the killing of an infant?

    Again no one. Except keep in mind murder is usually charged with county prosecutors, not the AG of the entire state. So if you wanted to feel safe committing infanticide you’d need many AG’s and prosecutors in the state to go along with this view of not prosecuting infanticide.

    The AG is a state official. How is he involved?

    See http://en.wikipedia.org/wiki/Attorney_general. The AG is the state’s chief legal advisor. Not necessarily the chief prosecutor. If a prosecutor charged someone with infanticide, and the case when to the S.C. on the argument that the infanticide law was unconstitutional the AG may let the prosecutor argue for the law, may argue himself against the law, or may be silent (assuming he agrees).

    As I said, I think the route an AG needs to take if he feels a law is un-Constitutional is to bring as an early case, a defendant with the will and means to appeal.

    That was essentially what the Scopes Trail was about. The prosecution was essentially ‘set up’ so a challenge to the law could be mounted. I don’t think there’s ever been a case of a prosecutor or AG being behind such a thing but I suppose it could happen.

  16. Boonton,
    Re- AG. I thought the AG was a state level DA. Apparently they don’t actually prosecute. So they don’t get involved in cases or trials. Why are they relevant to the discussion then.

  17. I suggest hitting wikipedia. On the Fed. level the AG is the head of the Dept. of Justice, however the Solicitor General is generally responsible with representing the gov’t in front of the Supreme Court. However, the AG may do it himself for cases of exceptional importance. I don’t know if the AG has direct control of the DoJ’s prosecutors and is able to directly veto individual prosecutions if he wishes.

    On the state level (http://en.wikipedia.org/wiki/State_Attorney_General) it is interesting to note that the majority of AG’s are elected. That would indicate to me that they don’t directly control prosecutions, at least on the county level. So in your example you could have county prosecutors charging people with infanticide while the state AG declines to defend the law.

  18. Boonton,
    You’re missing the larger point. You’ve based your argument on the (nonesensical) claim that the Executive branch can wave the Constitution as a wand in order to selectively ignore laws.

    So in your example you could have county prosecutors charging people with infanticide while the state AG declines to defend the law.

    No. My question is that if the prosecutors decide this is not Constitutional who has standing to challenge that position and how would that occur?

  19. My question is that if the prosecutors decide this is not Constitutional who has standing to challenge that position and how would that occur?

    No one, if you don’t like it you have to run for office on a platform of reversing that stance and aggressively prosecuting violations of that law.

    Again if you feel the Fed. gov’t should stomp down hard on medical pot and legalized recreational pot what outlet do you have to challenge the current position of the Fed. gov’t to let the states do things their way for the time being? You’d have to turn to electorial politics rather than filing a court case.

    I do think there might be some ways for someone to force a case to court when it comes to a criminal law that an AG feels is unconstitutional. Say for the sake of argument you think that because it doesn’t really impact interstate commerce, the Fed. gov’t has no right to say medical marijuana is prohibited. Yet the Feds refuse to prosecute distributors of medical pot. So how to get a case to court?

    Well I think you can still show standing to go to court. You could argue that since the law is on the books you are in danger of criminal prosecution if you open up a distribution business in your state. Even though the current AG shares your view on the law being unconstitutional, whose to say the next one won’t have a different view or that the current one won’t suddenly change his mind? With standing you toss the case in front of the S.C. which can rule the law is Constitutional or not and that’s the final word on the matter.

    Now if they rule it is constitutional I still don’t think there’s anything that can make an AG prosecute. For example, the SC has rejected the above argument when it comes to pot. All the states that are legalizing it are doing so in a real limbo unless Congress passes a new law recognizing their decisions.

    Now your example is interesting because it sounds a lot like a violation of Equal Protection, a real life example might be a local gov’t that refused to prosecute lynchings in black communities in the pre-civil rights era. In those cases I don’t think the local police or prosecutors ever claimed it was unconstitutional to make it illegal to murder a black person, they just didn’t enforce the law. I suspect the judicial remedy would be for those impacted to sue in civil court for damages. That would get real interesting because sovereign immunity says you can’t sue the gov’t, so you’d sue the actual individual sheriff, prosecutor, or AG. Either the gov’t would stand behind him or you’d end up taking his house and bank account!

  20. Boonton,
    Which is why having prosecutors decide based on their own personal opinion of whether a law is a “good idea” or Constitutional is not right.

  21. Blah, we could just decide to change the way we’ve approached things for the last few thousand years based on your hunch. You’ll have to convince a few more people though.

  22. Boonton,
    I don’t understand your response. Are you pretending that for a few thousand years (?) American executives have been allowed to pick and choose which laws they want to follow?

  23. Prosecutorial discretion predates the American system of gov’t.

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