Bump and Update: Today, OFAC granted the license to the ACLU and Center for Constitutional Rights to represent the al Awlaki's. (If you read my post below from this morning, you'll see I predicted that. Why? Aside from the news interview with the OFAC spokesman, as I wrote, the licenses are liberally granted so that lawyers don't challenge the government's authority to make you get one. (According to the OFAC website, the average wait time for approval is something like 117 days, but it can be a lot less and varies by the part of the country you are in. )

The Government doesn't want that lawsuit. But the ACLU still intends to challenge the license requirement, as applied to those providing pro bono legal services.

Today, the ACLU and CCR say:

�The license issued by OFAC today will allow us to pursue our litigation relating to the government�s asserted authority to engage in targeted killings of American civilians without due process. While we appreciate OFAC�s quick response to our lawsuit, we continue to believe that OFAC�s regulations are unconstitutional because they require lawyers who are providing uncompensated legal representation to seek the government�s permission before challenging the constitutionality of the government�s conduct. Notably, OFAC has indicated that the license issued to us today can be revoked at any time. We will pursue our claim that OFAC�s attorney-licensing regulations are unconstitutional and should be invalidated.�

[More...]

NYTimes:

Saying that it unfairly targets gay men and women, a federal judge in San Francisco struck down California�s voter-approved ban on same-sex marriage on Wednesday, handing supporters of such unions a temporary victory in a legal battle that seems all but certain to be settled by the Supreme Court.

[. . .] "Proposition 8 cannot survive any level of scrutiny under the Equal Protection Clause," wrote Vaughn R. Walker, the chief judge of the Federal District Court in San Francisco, who heard the case without a jury. "Excluding same-sex couples from marriage is simply not rationally related to a legitimate state interest."

The decision ((PDF).

I was on a conference call organized by the Immigration Policy Center titled "The 14th Amendment and Birthright Citizenship, Discussing the History and Ramifications of Amending the Constitution." Good background link here. The panelists were Michele Waslin, Senior Policy Analyst, Immigration Policy Center (Moderator), Margaret Stock, Attorney and Retired Lieutenant Colonel, Military Police Corps, US Army Reserve, Elizabeth Wydra, Chief Counsel, Constitutional Accountability Center, Eric Ward, National Field Director, Center for New Community, and Bill Hing, Professor of Law at University of San Francisco.

It was a good overview and the discussion was both policy based and a review of the relevant law. On the case law, of course the starting point is the 1897 case, US v. Wong Kim Ark. Also discussed was the legislative history of the 14th Amendment. A good article on that is here. I asked two questions - one was about Wong Kim Ark and its discussion of birthright citizenship as, not only being enshrined by the 14th Amendment, but also by the Constitution itself. To wit, the birthright citizenship language of the 14th Amendment was only necessary because Dred Scott put it in doubt. My second question was directed at some misinformation on the subject disseminated last night on Keith Olbermann's show by Professor Jonathan Turley:

Busy day.

Open Thread.

Plans to build a Mosque near the site of the former WTC cleared a final hurdle today. The ACLU says:

We congratulate the Landmarks Preservation Commission for promoting our nation's core values and not letting bias get in the way of the rule of law. "The free exercise of religion is one of America's most fundamental freedoms. For hundreds of years, our pluralism and tolerance have sustained and strengthened our nation. On 9/11, religious extremists opposed to that very pluralism killed 3,000 Americans. Those fanatics would want nothing more than for our nation to turn its back on the very ideals that make this country so great.

The ACLU calls the planned center a "monument to pluralism, symbolic of America's commitment to religious freedom."

I agree the Islamic Center has every bit as much of a right to be built on the site as any other kind of building. To reject it because of 9/11 is to further the very prejudices we should be striving to overcome. [More...]

TPM:

[Senate Majority Leader Harry] Reid (D-NV) quoted extensively from a column written by Washington Post columnist Michael Gerson on Friday. Reid read this portion from the podium of his press conference:

The authors of the Fourteenth Amendment guaranteed citizenship to all people "born or naturalized in the United States" for a reason. They wished to directly repudiate the Dred Scott decision, which said that citizenship could be granted or denied by political caprice.

They purposely chose an objective standard of citizenship -- birth -- that was not subject to politics. Reconstruction leaders established a firm, sound principle: To be an American citizen, you don't have to please a majority, you just have to be born here.

Then Reid said of Republicans pushing the issue, "They've either taken leave of their senses or their principles."

Well played Mr. Leader.

Speaking for me only

The GOP continues to reveal itself:

Mitch McConnell (R-Ky.) told The Hill on Monday that Congress �ought to take a look at� changing the 14th Amendment[. . . .] McConnell�s statement signals growing support within the GOP for the controversial idea, which has also recently been touted by Senate Minority Whip Jon Kyl (R-Ariz.) and Sen. Lindsey Graham (R-S.C.)In an interview, McConnell said the 14th Amendment provision should be reconsidered in light of the country�s immigration problem.

To refresh our memories, let's look at the first line of the Fourteenth Amendment, which is what Republicans are focused on now (they hate the whole thing of course):

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

The Fourteenth Amendment was ratified in July 1868, by the Reconstruction Congress, and the line quoted above was intended to overturn the infamous Dred Scott decision which addressed this question:

For cycling fans, big news today - 3 time Tour de France winner Alberto Contador has signed with Saxo Bank (new sponsor next year) head Bjarne Riis' team.

Open Thread.

Last week I wrote about the factually inaccurate assumption underlying Chris Bowers questioning of Dem opposition to the GOP's 2005 Nuclear Option.

My first point was that Bowers was just wrong on his facts. And now no one, not even Chris himself, disputes that.

The second point argued is that the filibuster is more harmful to progressive policy than to "conservative" policy. See Scott Lemieux and Kevin Drum. I think that is largely wrong. For the past 30 years, the essential progressive fight has been the preservation of progressive policy achievement. The filibuster has been very useful in this fight. But I think there is a larger point being missed (that actually cuts both ways in this discussion.) Kevin Drum writes:

In a strange reply to Atrios's point that if liberal enthusiasm is important to Democratic political success then maybe Dems should put some effort in sparking liberal enthusiasm, Jon Cohn writes:

Of course, liberals shouldn't be enthusiastic about the Democrats, let alone support them, if they think Democrats aren't fighting for liberal causes and at least having some success. But that's a different argument.

(Emphasis supplied.) How is that a different argument exactly? Cohn was berating "liberals" for not clapping loud enough -- Cohn is happy so they should be too. Atrios' point is that if liberals not clapping loud enough is a political problem for Dems, then maybe, just maybe, Dems (and Cohn) should be thinking about why liberals are not clapping loud enough and start to think about things they could do that would make them clap louder. Here's a tip - berating them as stupid and foolish for not clapping loud enough is not a good strategy.

Speaking for me only

The absurd ruling (PDF) by Virginia federal judge Henry Hudson denying the United States' motion to dismiss the complaint filed by Virginia AG Ken Cucinelli attacking the recently enacted health care bill (specifically the individual mandate) is most notable for its reasoning for why Virginia has standing to challenge the law. Here is how Ilya Somin, who is sympathetic to the ruling, puts it:

Hudson rejected the federal government�s claim that Virginia did not have standing to challenge the mandate. Although states are generally not allowed standing to litigate the interests of their citizens, Hudson argues that Virginia has standing because the federal health care bill conflicts with a recently enacted Virginia state law, the Health Care Freedom Act. This, he argues, is enough to give Virginia standing [. . .]

If this ruling is eventually upheld (it won't be imo, if the district court decides in Virginia's favor), here is a great new vehicle for challenging federal actions - states could pass laws that expressly conflict with federal policies they don't like and then take the United States to court and challenge the constitutionality of the federal actions. See Jack Balkin. Yes, it's stupid. But it is rather useful, for it really places in stark relief what conservatives are about - reversing by judicial activism settled law regarding the power of the federal government. Yes, they want to refight not only the New Deal but the Civil War as well. A smart and effective Democratic Party would make hay from this.

Speaking for me only

I still haven't seen the news today, but it's time for the finale of The Bachelorette. I'm going offline so I don't read the ending before it airs here. If you want spoilers, I have them galore over at Popleft. (Don't read if you don't want to know the likely ending.) I will say that Mike Fleiss & Co. did a masterful job this season of preventing anyone from being completely certain, despite the plentiful spoilers, until this weekend.

Update: Ali made a great choice, they seem really happy. I liked her better tonight than I did all season.

Here's an open thread, all topics welcome.

I'm off to the jail and then have motions to write.

Update: the iPad on 3G gets great reception in a cement visiting room Who would have thought it? Wireless never works this good, if at all.

Here's an open thread, all topics welcome.

 

Sam Adam, Jr., attorney for Rod Blagojevich, is a bundle of nerves. He's not eating or sleeping, waiting on the 12 people who will decide his client's fate.

"It's not easy," he says. "You hope and you believe there are people in that jury room fighting for your side, but the truth is that you really don't know. And that's what makes it so hard."

Jury deliberations resume today.

Travel day for me.

Open thread.