Americans Disappointed Hillary’s Email Scandal Doesn’t Live Up to High Standards of Sordidness Set by Clintons in the PastPosted: March 4, 2015
[BOOKS] Tocqueville’s Nightmare: The Administrative State Emerges in America, 1900-1940, by Daniel R. ErnstPosted: March 4, 2015
Review of TOCQUEVILLE’S NIGHTMARE: The Administrative State Emerges in America, 1900-1940, by Daniel R. Ernst Oxford University Press, 2014
ADRIAN VERMEULE is the John H. Watson Professor of Law at Harvard Law School. He is the author or co-author of eight books on public law and legal theory, most recently The Constitution of Risk (2014).
Adrian Vermeile writes: Although Dan Ernst ends his account of the emergence of the American administrative state in 1940, the true climax, at least from the lawyer’s point of view, occurs in 1932. In that year the great Chief Justice Charles Evans Hughes undertook his titanic effort to forge a charter of compromise, a treaty of peace, between the administrative state and the rule of law. The case was Crowell v. Benson, involving an agency charged with deciding workman’s compensation cases involving injured maritime workers.
“The mid-century attempt to domesticate the American administrative state, described so skillfully by Ernst, ultimately came undone, and it is a live question whether anything else has taken its place.”
Hughes’s opinion in many ways laid down lines of demarcation that were written into the Administrative Procedure Act of 1946, the great framework statute or quasi-constitution of the administrative state. It is a tribute to Hughes that his effort created an equilibrium that outlasted the turbulent years of his Chief Justiceship — despite the intervening constitutional revolution of 1937, after which the courts stopped trying to enforce narrow readings of the national government’s power over interstate commerce, and stopped trying to police statutory grants of authority from Congress to the executive (the so-called “nondelegation doctrine”).
Having paid due tribute, however, it must be said that the equilibrium Hughes brought into being is a thing of the past. The line of demarcation between administration and law, the frontier of the administrative state, has shifted markedly, with law giving way to administration across almost every margin identified in Crowell — in large part because law has abnegated its authority to administration. Ernst is not wholly clear about whether the equilibrium he identifies persists all the way into the present, doubtless because the story from 1940 to the present is not the story he is trying to tell. But to understand the significance of his book, it is important to understand that what it offers is a portrait of a particular equilibrium, one that has since vanished. The mid-century attempt to domesticate the American administrative state, described so skillfully by Ernst, ultimately came undone, and it is a live question whether anything else has taken its place.
“Ernst’s narrative is highly readable and strikes just the right balance among the historian’s love of detail, the lawyer’s need for conceptual organization, and the political theorist’s addiction to high-level principles.”
Ernst’s narrative is highly readable and strikes just the right balance among the historian’s love of detail, the lawyer’s need for conceptual organization, and the political theorist’s addiction to high-level principles. Let me begin with the level of political and constitutional theory. The high-level frame of the book is a choice or contest among possible visions of the relationship between law and administration. Traditional lawyers were afflicted by “Tocqueville’s nightmare,” a vision of a centralized administration abusing its powers and trampling on legal rights. (The nightmare persists, of course, as Philip Hamburger’s recent book shows). The main alternatives or competitors may be understood as different conceptions of “the rule of law.”
One alternative, championed by Ernst Freund, was the German idea of the Rechtsstaat — the rule-of-law state founded on clear positive enactments that would fix the metes and bounds “where the sovereign’s will prevailed and where it yielded to the will of the individual” (p. 2). The Rechtsstaat ideal, however, lost out to a different conception of the rule of law, championed by Hughes among others — a modified and updated version of Albert Venn Dicey’s ideal that subjected all official action to review by ordinary common-law courts.
“…perhaps the major expansion of the administrative state since Crowellhas come not in the areas it addressed, but in an area it said almost nothing about: agency rulemaking. Agencies may act like little courts, as in Crowell, or like little legislatures, making general rules with the force and effect of law.”
After the emergence of the administrative state, the original version of the Diceyan ideal was a non-starter. Ernst shows convincingly that even some traditional lawyers came to understand and appreciate the expertise and efficiency of relatively nonpolitical agencies, who were more professional and less liable to be overrun by patronage politics than other potential suppliers of lawmaking, such as legislative committees, and more knowledgeable and less expensive than the common-law judges and the elaborate processes of litigation. Such lawyers reinvented themselves as transactional engineers, shepherding clients through the administrative process — not “officers of the court” but “officers of the state” (6). Yet lawyers like Hughes also worked to translate or adapt Dicey’s commitments in the new environment, developing an approach that retained a crucial role for judicial review of administrative action. As Richard Fallon has observed in a different but related context, the translated Diceyan approach attempted not so much to get every given case right, but instead to provide an overall scheme of review that would suffice to keep the administrative state within the bounds of law. Read the rest of this entry »
[PHOTO] William Shatner and Leonard Nimoy Reading MAD Magazine Between Takes on the Original Star Trek Series, 1968Posted: March 4, 2015
National Review’s Charles Cooke on Hillary’s homebrew server: ‘This was premeditated and it was corrupt’Posted: March 4, 2015
Originally posted on JONATHAN TURLEY:
The Supreme Court has decided to wade back into the controversy over the Affordable Care Act (ACA) or “Obamacare” today with the granting of review of King v. Burwell, No. 14-114. I have previously written about the King case as well as the parallel case in the D.C. Circuit in Halbig. Today, the Supreme Court will hear oral arguments in King and there appears a rather transparent effort by the Administration to give justices sticker shock in considering the challenge, particularly Chief Justice John Roberts. [For full disclosure, I am lead counsel in the challenge filed by the United States House of Representatives to different ACA changes ordered unilaterally by President Obama in House of Representatives v. Burwell.]
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Originally posted on Twitchy:
According to AP, the Internet address for Hillary Clinton’s homebrew email server was registered to someone named Eric Hoteham. That name, however, “does not appear in public records databases, campaign contribution records or Internet background searches.”
We wrote this morning, “It’s time to find this Hoteham character — if that’s really his name — and get him under oath.”
Now someone calling himself “Eric Hoteham” has set up a Twitter account. He describes himself as “number 1 transparency advocate, internets expert, cattle futures aficionado, rose law alum.”
This morning, he’s cheering on Hillary Clinton’s defenders:
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Some banks are seeing a growing incidence of fraud on Apple’s mobile-payment service as criminals exploit vulnerabilities in the verification process of adding a credit card, according to people familiar with the matter.
“The fraud issue was brought to light by Cherian Abraham, a payment expert who works with banks and retailers on mobile-payment strategies, in a blog post in late February. He said fraud “is growing like a weed, and the bank is unable to tell friend from foe.”
Banks are tightening the verification process in an attempt to curb the fraud, these people said, declining to be identified citing a confidentiality agreement with Apple.
The fraud issue was brought to light by Cherian Abraham, a payment expert who works with banks and retailers on mobile-payment strategies, in a blog post in late February. He said fraud “is growing like a weed, and the bank is unable to tell friend from foe.”
“Stolen identities and lifted credit card numbers are not unique to Apple Pay. Stolen cards have been a problem for a long time in e-commerce transactions, where the rates of fraud are higher than in-store credit card purchases.”
Abraham said it’s not “an anomaly” to see fraud accounting for about 6% of Apple Pay transactions, compared to about 0.1% of transactions using a plastic card to swipe. He noted that fraud rates vary by issuing bank.
An Apple spokeswoman declined to comment on the fraud rates, but said Apple Pay is “designed to be extremely secure and protect a user’s personal information.” She added that “banks are always reviewing and improving their approval process, which varies by bank.”
Stolen identities and lifted credit card numbers are not unique to Apple Pay. Stolen cards have been a problem for a long time in e-commerce transactions, where the rates of fraud are higher than in-store credit card purchases. However, Apple Pay – thanks to its quick and easy checkout process – can combine some of the vulnerabilities of online shopping and the instant delivery of buying a product in store. Read the rest of this entry »
The highly unusual practice of a Cabinet-level official physically running her own email would have given Clinton, the presumptive Democratic presidential candidate, impressive control over limiting access to her message archives
WASHINGTON (AP) – Jack Gillum and Ted Bridis report: The computer server that transmitted and received Hillary Clinton’s emails – on a private account she used exclusively for official business when she was secretary of state – traced back to an Internet service registered to her family’s home in Chappaqua, New York, according to Internet records reviewed by The Associated Press.
“In November 2012, without explanation, Clinton’s private email account was reconfigured to use Google’s servers as a backup in case her own personal email server failed, according to Internet records. That is significant because Clinton publicly supported Google’s accusations in June 2011 that China’s government had tried to break into the Google mail accounts of senior U.S. government officials.”
The highly unusual practice of a Cabinet-level official physically running her own email would have given Clinton, the presumptive Democratic presidential candidate, impressive control over limiting access to her message archives. It also would distinguish Clinton’s secretive email practices as far more sophisticated than some politicians, including Mitt Romney and Sarah Palin, who were caught conducting official business using free email services operated by Microsoft Corp. and Yahoo Inc.
Most Internet users rely on professional outside companies, such as Google Inc. or their own employers, for the behind-the-scenes complexities of managing their email communications. Government employees generally use servers run by federal agencies where they work.
“The AP has waited more than a year under the open records law for the State Department to turn over some emails covering Clinton’s tenure as the nation’s top diplomat, although the agency has never suggested that it didn’t possess all her emails.”
In most cases, individuals who operate their own email servers are technical experts or users so concerned about issues of privacy and surveillance they take matters into their own hands. It was not immediately clear exactly where Clinton ran that computer system.
“Operating her own server would have afforded Clinton additional legal opportunities to block government or private subpoenas in criminal, administrative or civil cases because her lawyers could object in court before being forced to turn over any emails.”
Clinton has not described her motivation for using a private email account – email@example.com, which traced back to her own private email server registered under an apparent pseudonym – for official State Department business.
Operating her own server would have afforded Clinton additional legal opportunities to block government or private subpoenas in criminal, administrative or civil cases because her lawyers could object in court before being forced to turn over any emails. And since the Secret Service was guarding Clinton’s home, an email server there would have been well protected from theft or a physical hacking.
“It was unclear whom Clinton hired to set up or maintain her private email server, which the AP traced to a mysterious identity, Eric Hoteham. That name does not appear in public records databases, campaign contribution records or Internet background searches.”
But homemade email servers are generally not as reliable, secure from hackers or protected from fires or floods as those in commercial data centers. Those professional facilities provide monitoring for viruses or hacking attempts, regulated temperatures, off-site backups, generators in case of power outages, fire-suppression systems and redundant communications lines.
Hillary email story about to metasticize..SHE RAN HER OWN SERVER. Looks VERY premeditated to thwart the law. http://t.co/Uo7zS8XLmb
— Paul Equale (@paulequale) March 4, 2015
A spokesman for Clinton did not respond to requests seeking comment from the AP on Tuesday. Clinton ignored the issue during a speech Tuesday night at the 30th anniversary gala of EMILY’s List, which works to elect Democratic women who support abortion rights.
It was unclear whom Clinton hired to set up or maintain her private email server, which the AP traced to a mysterious identity, Eric Hoteham. That name does not appear in public records databases, campaign contribution records or Internet background searches. Hoteham was listed as the customer at Clinton’s $1.7 million home on Old House Lane in Chappaqua in records registering the Internet address for her email server since August 2010. Read the rest of this entry »
For more than eight years, Fox News has been broadcasting a 3 A.M. program called ‘Red Eye,’ an odd and often funny late-night show that is not exactly satire, and not exactly anything else, either. Its sensibility is snarky and surreal, thanks to its host, Greg Gutfeld, a former magazine editor who adopts a tone of half-sarcastic alarm, as if he can’t decide which is more annoying: the politician he is talking about, or the fact that he has to talk about politicians.
Last month, Jon Stewart declared that he would be leaving “The Daily Show,” after sixteen years. One of many writers who paid him tribute was Oliver Morrison, in The Atlantic, who used the opportunity to consider the relationship between comedy and ideology.
“From the beginning, ‘Red Eye’ was cheerfully repetitive, finding humor in a series of running gags. Gutfeld liked to introduce guests with absurd, sexually suggestive hypotheticals that were meant to be flattering. On Greg Proops, the comedian: ‘If hilarity were a telethon, I’d do him in front of a bunch of sick kids’.”
Stewart’s former colleague, Stephen Colbert, once joked that “reality has a well-known liberal bias.” Morrison wondered whether political satire, too, might have a liberal bias. He noted that liberal humor would live on, thanks to programs such as “Last Week Tonight With John Oliver,” on HBO. But he couldn’t identify an equivalent tradition on the other side of the political spectrum. “Why,” he asked, “hasn’t a conservative Daily Show found its own place on Fox?”
“Gutfeld probably regretted offending Canadian troops and their family members, but he was probably also pleased that his biggest scandal involved the phrase ‘gorgeous white Capri pants’.”
It wasn’t clear whether Morrison meant to refer to the Fox Broadcasting Company, which isn’t known for politics, or to Fox News, which isn’t known for comedy. (Why couldn’t a conservative comedy show air on Comedy Central, the ostensibly nonpartisan network that broadcasts “The Daily Show”?) But for more than eight years, Fox News has been broadcasting a 3 A.M. program called “Red Eye,” an odd and often funny late-night show that is not exactly satire, and not exactly anything else, either. Its sensibility is snarky and surreal, thanks to its host, Greg Gutfeld, a former magazine editor who adopts a tone of half-sarcastic alarm, as if he can’t decide which is more annoying: the politician he is talking about, or the fact that he has to talk about politicians. It sounds like faint praise to call “Red Eye” the funniest and most unpredictable program on cable news, but that’s what it is—or, rather, that’s what it was.
Last week, Gutfeld announced that he, like Stewart, would be leaving late night—in his case, to develop a new weekend program for Fox News. (“Red Eye” will continue, with a different host.) In his article, Morrison discussed Gutfeld in a dismissive paragraph, judging that his humor was often “hackneyed,” and “far . . . from working in prime time.” In fact, Gutfeld is a familiar presence on the network’s two highest-rated programs: he is a regular member of the panel on “The Five,” an afternoon talk show, and a guest and occasional guest host for Bill O’Reilly, at eight. Somehow, Gutfeld—the proprietor of a program whose continued existence once seemed like both a secret and a mystery—has become one of the most prominent faces on Fox News.
From the beginning, “Red Eye” was cheerfully repetitive, finding humor in a series of running gags. Gutfeld liked to introduce guests with absurd, sexually suggestive hypotheticals that were meant to be flattering. (On Greg Proops, the comedian: “If hilarity were a telethon, I’d do him in front of a bunch of sick kids.”) For a time, Andy Levy served as the show’s pesky “ombudsman,” delivering persnickety or off-topic corrections during a “halftime report” in the middle of the show. “You said we need to weaponize space,” Levy told Gutfeld, one night, deadpan. “Actually, the Outer Space Treaty of 1967 prohibits the U.S. or any other signatory nation from installing any kind of nukes or weapons of mass destruction in space, and limits the use of the moon and other celestial bodies to purely peaceful reasons.”
“…Red Eye” was often “nauseating”—not to mention inane, ramshackle, mindlessly sarcastic, sneakily smart, patently absurd, and generally refreshing. But he would be quick to point out that the show never had anything like twenty million viewers…”
Sometimes, Gutfeld tweaked cable-news conventions, as when he purported to address banking reform by convening a sixteen-person panel of experts, including familiar Fox News personalities such as John Bolton, and markedly unfamiliar ones, such as Rosie O’Donnell. As he introduced them, they appeared (or seemed to appear) live, forming a four-by-four matrix of pundit redundancy—by which point it was time, of course, for Gutfeld to thank them all, by name, and then end the segment. Other times, the show came joyfully unmoored from those conventions, as when Levy, throwing the broadcast back to Gutfeld, suddenly began quoting “A Midsummer Night’s Dream”:
GUTFELD: Thank you, Andy.
LEVY: Get you gone, you dwarf; you minimus, of hindering knot-grass made; you bead, you acorn. Greg.
GUTFELD: Why rebuke you him that loves you so?
LEVY: I apologize for nothing.
This last line was Levy’s catchphrase, and it also served as a constant reminder of the time, in 2009, when Gutfeld was obliged to apologize to the Canadian military, after a particularly irreverent discussion. The head of the Canadian land forces had said that the Army might need “a short operational break” lasting “at least one year” following its engagement in Afghanistan. Gutfeld had wondered whether this might not be “the perfect time to invade this ridiculous country,” adding, “The Canadian military wants to take a breather, to do some yoga, paint landscapes, run on the beach in gorgeous white Capri pants.” Gutfeld probably regretted offending Canadian troops and their family members, but he was probably also pleased that his biggest scandal involved the phrase “gorgeous white Capri pants.”
For all his seeming clumsiness, Gutfeld had a remarkable knack for saying ridiculous things without getting himself fired. (When one guest, a musician, set his electric guitar ablaze, Gutfeld was afraid that he might face punishment; he concluded, when no punishment came, that none of the executives stayed up late enough to watch his show.) On Friday night, during his final broadcast, he revisited some favorite old segments, including an excellent clip of Mick Foley, the former professional wrestler, mistaking Chris Barron, a co-founder of the gay conservative group GOProud, for Chris Barron, the lead singer of the Spin Doctors. (“I looked you up, man,” said Foley, sounding embarrassed but also disappointed—he had prepared a zinger about “Little Miss Can’t Be Wrong.”) “I dare you to find one boring moment,” Gutfeld said, sounding uncharacteristically earnest. “Excluding this one.” Read the rest of this entry »
New York Post ‘BIBI GOES NUCLEAR: Netanyahu’s Historic Speech to Congress, Bam Gets Schooled’ Wednesday, March 4, 2015Posted: March 4, 2015
“In a way it was Churchillian — not in delivery; it was not up to Bibi’s norm — but in the sonorousness and the seriousness of what he said…And it was not Churchill of the ‘40s. This was the desperate Churchill of the ‘30s.”
“And it was not Churchill of the ‘40s. This was the desperate Churchill of the ‘30s. This was a speech of, I think, extraordinary power but great desperation.”
Originally posted on Twitchy:
There are plenty of good jokes out there about how Secretary of State Hillary Clinton likely used her old CompuServe account as her private email address while conducting business (and whatever else) at the State Department. It turns out the operation was a bit more sophisticated than that, with someone reportedly registering the ClintonEmail.com domain the first day of her Senate confirmation hearing.
The handy thing about registering a domain is that you can usually add addresses and users at will, which raises some follow-up questions.
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Originally posted on TIME:
Heroin-related deaths quadrupled in the United States within just three years, according to new federal data.
The new report from the National Center for Health Statistics (NCHS) shows that from 2010 to 2013, drug poisoning deaths involving heroin increased four-fold, from 0.7 deaths per 100,000 people to 2.7 deaths per 100,000 people. The rate was about four times higher among men than among women in 2013.
Heroin-related drug poisoning deaths have increased in all age groups, races and ethnic groups, the data show. Every region in the U.S. also experienced an increase, and the Midwest experienced the biggest jump.
One reason for the spike is America’s growing painkiller problem. The NCHS released another report last month showing that significantly more people over age 20 are using opioids. The number of people who used a painkiller stronger than morphine increased from 17% to 37% from the early 2000s to about a…
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Originally posted on Twitchy:
Though the New York Times lit up Twitter by breaking the news last night, it was the investigation led by Benghazi Select Committee Chairman Trey Gowdy that uncovered former Secretary of State Hillary Clinton’s use of personal email accounts to conduct official (and perhaps some monkey) business. In a presser today, Gowdy revealed that Clinton actually had more than two personal accounts and yet no official government address.
Strange — Clinton never mentioned this in previous testimony.
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Originally posted on KTLA:
Workers at a Henderson laundry facility were startled Tuesday morning to find two stillborn babies in a shipment of linen from an area hospital.
A Henderson official told the Review-Journal that workers found the babies in a laundry truck at the Angelica Corporation, 1080 Mary Crest Rd., at about 10 a.m., and called police.
Henderson police spokeswoman Kathleen Richards said detectives determined that the twin babies were born at Spring Valley Hospital Medical Center. It’s unclear how the babies were mixed with the linen, she said.
No immediate comment was forthcoming from a hospital spokeswoman.
Further details, including the time of birth or gender of the babies, was not released. Richards declined to release a police report on the incident, saying the investigation is ongoing.
Even though police do not suspect a crime was committed, the investigation will remain open until the Clark County coroner’s office confirms what caused the…
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“We’ve been told that no deal is better than a bad deal. Well, this is a bad deal. It’s a very bad deal. We’re better off without it.”
David Rutz writes: In a speech before a joint session of the U.S. Congress on Tuesday, Israeli Prime Minister Benjamin Netanyahu laid out the perils of a potentially “very bad” nuclear deal with Iran and called for the U.S. to work toward a better one for the sake of Israel and the entire world’s security.
Netanyahu spoke strongly about the threat of Iran, the largest state sponsor of terrorism in the world, calling the new supposedly moderate regime “as radical as ever” and still bent on the destruction of Israel. He also laid out the connections between Iran and the Islamic State terrorist group, saying that despite their differences they were both still dangerous enemies of the U.S.
“First, stop its aggression against its neighbors in the Middle East,” he said. “Second, stop supporting terrorism around the world. And third, stop threatening to annihilate my country Israel, the one and only Jewish state!”
The deal that could be struck between Iran and the U.S. would at best curtail Iran’s nuclear ambitions but would do nothing to end them, and it would create a nuclear arms race in the Middle East, Netanyahu said.
“Not a single nuclear facility would be demolished,” he said. “Thousands of centrifuges used to enrich uranium would be left spinning.”
“The greatest danger facing our world is the marriage of militant Islam with nuclear weapons. We can’t let that happen. But that, my friends, is exactly what could happen if the deal now being negotiated is accepted by Iran.”
Even before it began, Netanyahu’s speech infuriated the White House. Obama has long been at odds with him, and more than 50 Democrats boycottedNetanyahu’s speech. Netanyahu used his prominent platform Tuesday to demonstrate why Obama’s second-term goal would have the unintended effect of further endangering the Jewish state.
Two key concessions to Iran made the deal “so bad,” Netanyahu said. Read the rest of this entry »
Originally posted on 9to5Mac:
The Apple Watch hasn’t shipped yet, but it’s already showing up on fashion magazine covers, and now it’s even winning design awards. The wearable device picked up the iF Design Gold award from the iF International Forum Design. The organization declared that the Cupertino-designed smartwatch is “already an icon.”
The idea of combining classic materials such as leather and metal with state-of-the-art technology to create a very individual fashion accessory has resulted in a delightful product offering a holistic user experience. The Apple Watch scores highly for each design detail and is an altogether extraordinary piece of design. For us, it is already an icon.
It’s not a big surprise that the Apple Watch won this specific award, however. Nearly every Apple product (we couldn’t find the iPhone 4 Bumper on the list) has won one, including most of the iPhone and iPad case the company has produced.
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BREAKING: Man shot by LAPD on Skid Row was Charley Robinet, Convicted of Bank Robbery and Recently ParoledPosted: March 3, 2015
— Robert Holguin (@ABC7Robert) March 3, 2015
Originally posted on KTLA:
About 20 locations in Southern California were raided Tuesday in connection with a federal investigation into three “maternity tourism” schemes that allow pregnant foreign nationals to deliver children in the U.S. and ensure their babies’ American citizenship.
Federal criminal search warrants were served at locations in Los Angeles, Orange and San Bernardino counties, according to a spokeswoman with U.S. Immigration and Customs Enforcement.
Affidavits unsealed Tuesday describe locations in Irvine, Rowland Heights, Walnut and Rancho Cucamonga as “Chinese birthing houses” where visa, marriage and tax fraud allegedly occurred.
Video from the scene of one of the raids in Irvine showed Internal Revenue Service agents entering an apartment complex called The Carlyle at Colton Plaza.
The raids represent a rare crackdown on the maternity tourism business in the U.S.,
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