TSA v Rand Paul: Constitutional Crisis?

Something interesting happened this morning, and I'm wondering if we've got a Constitutional violation by the TSA. Allow me to give you some background.

Earlier this morning, Senator Rand Paul was attempting to catch a flight to Washington DC to attend a Senate session. When going through the full-body scanner, TSA officials apparently found "an anomaly" and told Senator Paul he'd have to be patted down. Senator Paul refused the pat-down, was escorted out of the security area into a small cubicle, and the situation was eventually resolved and he was allowed to catch a later flight.
http://www.cbsnews.com/8301-503544_162-57363889-503544/rand-paul-detained-by-tsa/

Republican Sen. Rand Paul of Kentucky on Monday found himself in a showdown with the Transportation Security Administration in Nashville, Tennessee after refusing to undergo a full-body pat down. Paul was later re-screened and booked on a subsequent flight.

The senator went through the scanner at the airport but was told there was some sort of "anomaly" with the scan and would have to get a full-body pat down, Paul's chief of staff Doug Stafford told CBS News. Paul did not consent to this and offered another scan, but the TSA insisted on the pat down.

According to the Associated Press, Paul said he was "detained" in a small cubicle in the airport, which is about an hour from his Bowling Green, Kentucky home, and missed his flight to Washington for a Senate session.

The TSA disputed the characterization that Paul was "detained." The TSA told CBS News that Paul wasn't detained at any point, though he triggered an alarm during a routine screening and refused to complete the screening process.

The TSA is pushing back, saying Rand Paul was treated "like everybody else."
http://thehill.com/blogs/transportation-report/tsa/205765-tsa-defends-treatment-of-sen-rand-paul

The Transportation Security Administration defended its treatment of Sen. Rand Paul (R-Ky.) at the Nashville International Airport Monday, saying the lawmaker was treated like every other passenger it processes.

The problem is that Rand Paul isn't "anybody else," he's a sitting United States Senator who was on his way to attend a Senate Session. Let me quote the relevant article of the Constitution for you... Article 1, Section 6.

(The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States.) (The preceding words in parentheses were modified by the 27th Amendment.) They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

The Constitution clearly indicates that Congressmen can't be stopped from attending a session, or when "going to and returning from the same." Senator Paul was traveling to attend a session, and the TSA stopped him from traveling. Senator Paul says he was "detained" in a small cubicle, while TSA denies that characterization. Folks, if TSA escorted me away and stuck me in a cubicle, I would conclude (as would any reasonable person) that I was being detained. While the Constitution specifically says "arrest," with today's "indefinite detention" powers that were unheard of in the Founders' age, I'm reasonably sure SCOTUS would rule that any detention is also banned.

So we have a potential Constitutional crisis brewing here... It all depends on how much Senator Paul wants to make of it.

Personally, I hope Rand Paul pushes this as hard as he possibly can. Because TSA would eventually have to agree to treat Congressmen differently than everybody else, and that could well ignite a firestorm of protest against the invasive screening procedures.

This situation is incredibly recent, so let's see what happens over the next couple of days.

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Breaking: SCOTUS Rules On 4th Amendment

SCOTUS has issued a ruling in a Fourth Amendment case that claimed attaching a GPS device to a car was a violation of the 4th amendment protection against unreasonable searches and seizures. Apparently, they ruled unanimously that a GPS device attached to a car "constitutes a search under the Fourth Amendment" and therefore requires a warrant.

I'm not finding anything linkable at this time, but I'll post them as they become available.

UPDATE: If you're interested, here is the text of their decision in a PDF file:
http://www.supremecourt.gov/opinions/11pdf/10-1259.pdf

The Government obtained a search warrant permitting it to install a Global-Positioning-System (GPS) tracking device on a vehicle registered to respondent Jones’s wife. The warrant authorized installation in the District of Columbia and within 10 days, but agents installed the device on the 11th day and in Maryland. The Government then tracked the vehicle’s movements for 28 days. It subsequently secured an indictment of Jones and others on drug trafficking conspiracy charges. The District Court suppressed the GPS data obtained while the vehicle was parked at Jones’s residence, but held the remaining data admissible because Jones had no reasonable expectation of privacy when the vehicle was on public streets. Jones was convicted. The D. C. Circuit reversed, concluding that admission of the evidence obtained by warrantless use of the GPS device violatedthe Fourth Amendment.


Held: The Government’s attachment of the GPS device to the vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a search under the Fourth Amendment. Pp. 3–12.

(a) The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Here, the Government’s physical intrusion on an “effect” for the purpose of obtaining information constitutes a “search.” This type of encroachment on an area enumerated in the Amendment would have been considered a search within the meaning of the Amendment at the time it was adopted. Pp. 3–4.

(b) This conclusion is consistent with this Court’s Fourth Amendment jurisprudence, which until the latter half of the 20th century was tied to common-law trespass. Later cases, which have deviated from that exclusively property-based approach, have applied the analysis of Justice Harlan’s concurrence in Katz v. United States, 389 U. S. 347, which said that the Fourth Amendment protects a person’s “reasonable expectation of privacy,” id., at 360. Here, the Court need not address the Government’s contention that Jones had no “reasonable expectation of privacy,” because Jones’s Fourth Amendment rights do not rise or fall with the Katz formulation. At bottom, the Court must “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” Kyllo v. United States, 533 U. S. 27, 34. Katz did not repudiate theunderstanding that the Fourth Amendment embodies a particular concern for government trespass upon the areas it enumerates. The Katz reasonable-expectation-of-privacy test has been added to, but not substituted for, the common-law trespassory test. See Alderman v. United States, 394 U. S. 165, 176; Soldal v. Cook County, 506 U. S. 56, 64. United States v. Knotts, 460 U. S. 276, and United States v. Karo, 468 U. S. 705—post-Katz cases rejecting Fourth Amendment challenges to “beepers,” electronic tracking devices representing another form of electronic monitoring—do not foreclose the conclusion that a search occurred here. New York v. Class, 475 U. S. 106, and Oliver v. United States, 466 U. S. 170, also do not support the Government’s position. Pp. 4–12.

(c) The Government’s alternative argument—that if the attachment and use of the device was a search, it was a reasonable one—is forfeited because it was not raised below. P. 12. 615 F. 3d 544, affirmed.

SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, THOMAS, and SOTOMAYOR, JJ., joined. SOTOMAYOR, J., filed a concurring opinion. ALITO, J., filed an opinion concurring in the judgment, in which GINSBURG, BREYER, and KAGAN, JJ., joined.

UPDATE: Somebody else finally got around to writing about it...
http://thehill.com/blogs/hillicon-valley/technology/205753-supreme-court-rules-warrantless-gps-tracking-is-unconstitutional

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Court Rejects Perry's VA Ballot Appeal

If you'll recall, only Ron Paul and Mitt Romney were able to get on the ballot in Virginia. Perry and company have been trying to use the courts to get on the ballot, but so far no luck. Another court just rejected perry's appeal.
http://www.politico.com/blogs/burns-haberman/2012/01/court-rejects-perrys-va-ballot-appeal-111181.html

The appeals court confirmed the argument that Perry waited too long to challenge the law, and should have done so before he failed to qualify for the ballot.

"If we were to find Movant’s delay excusable, we would encourage candidates to wait until the last minute to bring constitutional challenges to state election laws," the decision reads. "Once a candidate learned he had been denied a place on the ballot, he would take his disappointment to the courthouse and hapless state election boards would be forced to halt their scheduled election processes to wait for a ruling."

The judges note that even long-shot candidates in the past have managed to meet the state's signature requirements, meaning they are clearly feasible.

Now, I've made no secret of the fact that I support Ron Paul for President, and this situation does him a favor by putting him head-to-head with Romney. Nevertheless, I am disappointed that Virginia will only feature two candidates on their ballot. Strict ballot access laws are a bad thing, because they restrict the choices that voters can have.

The legislature was talking about changing the law to make it easier to get on the ballot. That would be a good thing... too bad it probably won't happen in time for their primary this year.


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Who Does Obama Fear Most?

Or to put it another way, who DOESN'T Obama want to run against in November? Let's not look at his words, let's look at his actions. Obama announced today that he wants to merge six government agencies into one, eliminating 1,000 or so jobs and cutting $3 billion in spending.
http://thehill.com/homenews/administration/203965-obama-looks-to-merge-trade-commerce-agencies

Obama is asking lawmakers to grant him a reorganizational power that would let him propose mergers that would save the government money. The House and Senate would then decide whether to approve his ideas in an up-or-down vote in 90 days.

The first government reorganization effort in decades, which comes in the first month of a reelection year, is intended to portray Obama as the one trying to make government smaller. By asking Congress to give him approval, Obama hopes to make it difficult for the legislature to reject his plan, as Republicans on Capitol Hill might then be the ones seen as blocking an effort to make government smaller and more efficient.

I think the article pegged Obama's motivation here, to portray himself as the one trying to make government smaller. And he wants to do it by eliminating government agencies. Do any of the GOP Presidential candidates want to do something similar? Yes, Ron Paul.

By trying to make himself look like Ron Paul, Obama telegraphs who he is really afraid of in 2012. Ron Paul is the one he's trying to emulate, because he knows the electorate wants exactly that kind of action. Romney can't speak convicingly on the subject, nor can any other GOP candidate except Dr. Paul.

Personally, I think we should make Obama run against the candidate he fears the most, and that's Ron Paul.


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NH Exit Poll: Who Could Beat Obama?

This is interesting, but I'm not hearing it talked about very much. Apparently, CNN did some exit polling during the New Hampshire primaries. One of the questions they asked is which candidate is most likely to beat Obama in November. It's a good question, and it produced interesting results.

Oh, so THAT'S why the poll disappeared and hasn't been mentioned since.


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Senator DeMint: GOP Should Listen To Ron Paul

Well, Ron Paul had a pretty good day yesterday. Yes, Romney won New Hampshire with almost 40% of the vote, but Ron Paul came in with a strong second place finish. If you're looking for a not-Romney candidate, Dr. Paul has finished above 20% in both Iowa and New Hampshire, the only candidate besides Romney to do so. Polls show both Paul and Romney in statistical ties with Obama in the general election, the only two candidates to poll that well v Obama. And Paul is aiming at South Carolina, hoping to make it a two-man race between him and Romney. And in that vein, something interesting has just occurred.

South Carolina Senator Jim DeMint, an influential conservative figure in the Republican party, went on the record today, telling South Carolina Republicans that they need to listen to Ron Paul.
http://thehill.com/blogs/blog-briefing-room/news/203557-sen-demint-urges-republicans-to-listen-to-ron-paul

"One of the things that's hurt the so-called conservative alternative is saying negative things about Ron Paul," DeMint told conservative radio host Laura Ingraham. "I'd like to see a Republican Party that embraces a lot of the libertarian ideas."

DeMint said he does not agree with the Texas congressman on everything but that the rest of the GOP presidential field should capture some of what Paul's been talking about for years because the Republican Party "needs" the libertarian movement.

"You don't have to agree with everything he's saying, but if the other candidates miss some of the wisdom about what he's saying about monetary policy ... that will be to our detriment," DeMint said.

Make no mistake, this is important. It isn't an endorsement, but it is still important. Why? Because all of the other Presidential candidates are trashing Ron Paul on all fronts and dismissing him as a kook... while up to a quarter of voters so far think he's the best man to be President. DeMint clearly sees value in Dr Paul and his views, and doesn't want the GOP turning away from what he obviously considers some important positions.

And I wonder if these comments are actually a precursor to endorsing Dr. Paul. That's not out of the question, I think, because Paul and DeMint have worked together before and share a lot of the same small-government ideas. And DeMint actually endorsed Rand Paul in his 2010 run for the US Senate. So an endorsement may be coming, or it may not... There's no telling, really. And if DeMint DOES endorse Paul, look for Paul's numbers to improve dramatically there. Why? Recent polling shows that 31% of likely SCGOP voters are more likley to vote for a candidate endorsed by Jim DeMint.

However, even just the comments DeMint made are important, because they show influential, conservative leaders within the GOP are not happy with Romney and actually support some or all of what Ron Paul is campaigning on. An endorsement would be a huge game-changer, I think, but even these comments serve to rock the boat. For although they aren't an endorsement of Paul, they can easily be read as a partial repudiation of Romney. And that's got to hurt, you know?

It'll be interesting to see how this one plays out.

UPDATE: If you'd like Senator DeMint to endorse Ron Paul, you might send a polite request asking that he do so.
http://www.dailypaul.com/202809/demint-bomb-contact-jim-demint-to-get-ron-paul-endorsement

Senator Jim DeMint is the most popular elected official in South Carolina (he won his last election with 61% of the vote) and he endorsed Rand Paul in 2010 when Rand ran for Senate in Kentucky. If Senator Jim DeMint endorses Ron Paul before the SC primary it will give a huge boost to Paul's campaign.

How the "DeMint Bomb" Works:
As many people as possible contact Sen. DeMint to ask for an endorsement. Do it before Jan. 15th so DeMint has time to make the endorsement before election day.

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Interesting Thought On Isolationism

I stumbled upon this picture, and I think it deals pretty directly with the "Ron Paul is an isolationist" accusation.

That's the kind of "isolationism" I can get behind. In fact, I LIKE it when my neighbors refrain from entering my house and breaking the windows. Isn't that how neighbors SHOULD behave?

Yeah, I thought so, too.


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Challenge To Putting Obama on Alabama Ballot

This is interesting. Did you know that a lawsuit had been filed in Alabama to keep Obama off the ballot as a non-citizen? Well, one has. In fact, a hearing is being held today to determine if the plaintiff has standing to pursue the legal claim... and Alabama Democratic Party Chairman Mark Kennedy has urged the judge to reject the case for lack of standing.
http://lib.store.yahoo.net/lib/realityzone/UFNobamaEligibilityAlabama.html

A man from Birmingham, Alabama is filing a lawsuit in the Jefferson County Circuit Court to keep Barack Hussein Obama off of the Alabama ballot, citing problems with Obama’s birth certificate.

According to the affidavit, Albert E. Hendershot, Jr is requesting that there be an “evidentiary hearing and production of the original long form birth certificate and microfiche copy of such original birth certificate of Barack Hussein Obama to be presented at the hearing.”

The lawsuit also requests that there be an injunction issued against Mark Kennedy, Chairman of Alabama Democratic Party, to keep Obama off the ballot. In addition, it requests that Alabama modify the “rules/ regulations for candidate eligibility verification/authentication, in order to stop elections fraud and forgery and assure the citizens of Alabama integrity of the elections process.”

As I understand it, the case alleges that Barrack Obama is not a natural born citizen of the United States, and therefore is ineligible to appear on the ballot to run for President. Sure, sure, we've heard it before. The difference with this claim is that it seems to rely on existing Supreme Court precedent to prove their case.


As I understand it, there are four SCOTUS cases in existence which deal with the definition of "natural born citizen." Those cases are:

The Venus, 12 U.S. 8 Cranch 253 253 (1814)
Shanks v. Dupont, 28 U.S. 3 Pet. 242 242 (1830)
Minor v. Happersett , 88 U.S. 162 (1875)
United States v. Wong Kim Ark, 169 U.S. 649 (1898)

In each of the above cases, the court was obliged to define what it meant to be a "natural born citizen" of the United States. The decision in each case used slightly different wording at times, but always seemed to agree on the basic definition of the term. And that definition?

Natural born citizens are those born in the country of parents who are citizens thereof. You'll notice the article cites one of the SCOTUS cases I cited, Minor v Happersett, which defined the term as follows:

At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives or natural-born citizens.

The latest case, US v Wong Kim Ark did recognize the passage of the 14th amendment (read it here) and did expand the definition of citizen to include anybody born in the country regardless of the citizenship status of the parents, but it left alone the definition of a "natural born citizen." In other words, anybody born in the country is a citizen, but only those born to parents who are also citizens can claim natural-born status. At least, that's the way the 1898 court saw things. Today? Things could be entirely different.

Yes, I know that 1898 was a long time ago, but it does appear that it was the last time SCOTUS dealt directly with this definition, so it is inarguably the governing definition of what it takes to be a natural born citizen. In order to be a natural born citizen, it seems one has to be born in the country TO PARENTS WHO ARE ALSO CITIZENS.

And therein lies the rub. Why? Because Barack Obama's father was not a US citizen when our current President was born. That isn't opinion, it's fact. The SCOTUS precedents on the issue ALL specify PARENTS, plural. So while Obama's mother was a citizen, the fact that his father was not, the plaintiffs claim, makes him other than a natural born citizen. In fact, in Shanks V Dupont the court held that "for children born in a country, continuing while under age in the family of the father, partake of his national character as a citizen of that country." Under that opinion, young Barack wasn't even a citizen of the United States until he became an adult and chose, much less a natural born citizen.

Does this make the case a slam dunk? Not by any means. But it does seem to be an interesting development, don't you think?

I will try to follow the case to see what, if anything, comes from it. If the judge rules the plaintiff does not have standing, I would like her (Jefferson County Circuit Judge Helen Shores Lee) to also specify who WOULD have standing. That might be nice to know, eh? And if it turns out that the answer is nobody, then the rules of standing need to be reworked... otherwise how can anybody petition for redress of grievance, as guaranteed in the Constitution>?

Oh, and some Tea Party activists in the state may be paying too much attention to the sensationalist angle with articles like this:
http://www.libertynewsonline.com/article_301_31406.php

That article makes many claims that I do not believe to be true at present. To whit, it claims the judge has already granted standing to the plaintiff and ordered an evidentiary hearing. From what I can determine, this is not the case... an assertion I will withdraw ONLY if I find out differently. Not from hearsay, and not from sensationalist reports, but from court observers who can see what was done.

I caution the Tea Party activists to be VERY careful with this issue, and not to buy into the more extravagant claims we can so easily find around the web. Research the issues carefully.

And for those of us who like to see reputable sources on these kind of things, hear are some reports from the friday edition of the Birmingham News:
http://blog.al.com/spotnews/2012/01/delay_sought_in_mondays_jeffer.html
http://blog.al.com/spotnews/2012/01/jefferson_county_judge_denies_2.html

If you'll notice, both articles say that Kennedy is asking standing to be denied... which strongly implies that it hasn't been granted yet. Had the issue been settled, they'd be making different arguments.

UPDATE: The hearing is over, and the case has been dismissed... probably due to lack of standing, though I have yet to receive a detailed report of the proceedings.

UPDATE: Here is an article from the Birmingham News. Yes, the case was dismissed, but NOT because of lack of standing. Instead, the judge claimed courts had no authority to tell political parties who they can and cannot place on their ballots. Seems a bit strange to me, though... Doesn't the State have any responsibility at all, here? Regardless, it will likely be appealed. And I think it will likley lose on appeal, too.
http://blog.al.com/spotnews/2012/01/suit_to_keep_president_barack.html

After a hearing in her Birmingham courtroom, Circuit Judge Helen Shores Lee ruled that the courts have no authority to tell the state political parties who they can include on their primary ballots.

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A Frank Discussion of Ron Paul's Foreign Policy

This is a video where Judge Napolitano discusses Ron Paul's foreign policy and his concept of national defense. I hope you find it interesting and informative.



If the player doesn't work, try this link:
http://video.foxbusiness.com/v/1341058115001/


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