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Yesterday, former Attorney General, Eric Holder, stated on Frontline that it is time to reschedule marijuana. While I would recommend descheduling marijuana, as I mention in several articles that I have written on the topic, this is a really important change from his statements during his tenure as AG. Because Holder may have some influence in the White House, it is possible that this issue could be addressed by the President before the next election.

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Despite the enormous growth in social media, scant legal advice is available to help the many people who are posting online. Easy-to-understand, comprehensive, and current, Legal Guide to Social Media provides the latest information on case law and statutes. It covers everything from privacy laws to copyright issues to how to respond to employers’ requests for your social media passwords. This plain English legal companion offers examples of and solutions to the kinds of situations you can expect to encounter when posting online content, whether for personal enjoyment or on behalf of an employer. You’ll learn how to avoid liability for defamation and third-party posts, the legalities of copying and linking to content, how to protect your own content, and much, much more. http://www.kimberlyahouser.com

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I have to admire a Judge who treats everyone the same. This Judge in Michigan has a strict no cell phone policy in his courtroom. When his cell phone rang during a trial (because he failed to turn it off), he fined himself $25 which he promptly paid. I admire integrity and am especially proud when I hear of someone in the legal profession demonstrating it.

http://www.abajournal.com/news/article/oops._judge_holds_himself_in_contempt_when_his_own_cellphone_rings_during/?utm_source=feedburner&utm_medium=feed&utm_campaign=ABA+Journal+Top+Stories

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The Supreme Court recently heard oral arguments in the case of Missouri v. McNeeley, No. 11-1425. At issue was whether or not the police must obtain a warrant prior to drawing blood from a person suspected of driving while under the influence of alcohol. McNeeley was pulled over for speeding and failed the field sobriety test. After refusing the breathalyzer, McNeeley was taken to the hospital where after refusing to allow his blood to be drawn, had the blood forcibly taken from his body. The trial court threw out the evidence from the blood test as being an unreasonable seizure in violation of the Fourth Amendment. The state appealed to the US Supreme Court asking that it declare that there is no need to obtain a warrant to draw blood. (Current law permits the drawing of blood without consent and without a warrant when alcohol is suspected after an accident with injuries). The state is asking for an extension of this rule to apply even when there is not an “exigent circumstance” such as an injury accident.

The state’s request is an example of everything that is wrong with our government today. I think reasonable people would agree that sticking a needle into your arm and forcibly withdrawing blood to be evaluated with the results being used against you in a criminal trial is not only an unreasonable seizure but would also violated your Fifth Amendment right against self-incrimination. When you read dystopian novels popular in the early 1900s and again today, the cause the dystopianism is always government intrusion on individual’s rights.[i]

Although I do not agree that there are any circumstances which should permit the government to forcibly take your bodily fluids to be used against you in a criminal prosecution without first obtaining a warrant, I am especially concerned that a state would feel comfortable asking to be able to conduct this type of activity without regard to the Constitution. As our rights continue to erode through the unchecked increase in government intrusion into our lives, we have to ask ourselves, when will enough be enough?

 

 


[i] E.g., Iron Hall, Brave New World, Fahrenheit 451, 1984 and more recently, The Handmaid’s Tale, Orxy & Crake, and the Hunger Games.

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In Armour v. City of Indianapolis, (No. 11-161 6-4-12) the Supreme Court again decided to ignore the Constitution and side with the government on very unsteady ground. At issue was whether the City had to pay back to certain homeowners money it had collected for a sewer assessment that it was later able to obtain funding for (through bonds). While the plaintiffs in this case paid the entire assessment (some $9,000 up front), the other homeowners who elected to pay the assessment over time had the amounts remaining due forgiven. While this would seem to violate the Equal Protection Clause with the government favoring one group of citizens over another, the court disagreed. Because the right at issue was economic rather than a “fundamental” right, the court applied the “rational basis” test. In other words, did the City have a rational basis to make the distinction between the homeowners who paid the assessment up front and the homeowners who chose to pay it over time. The City’s “rational basis” was that it was inconvenient to issue the refunds.
To his credit, Chief Justice Roberts indicated in his dissent that: “The Equal Protection Clause does not provide that no state shall ‘deny to any person within its jurisdiction the equal protection of the laws, unless it’s too much of a bother.’” Only Scalia and Alito joined the dissent, leaving this the current law of the land as stated by a majority of 6. Your economic rights can be trampled on by government. One can only dream of the time when the American public wakes up and starts electing libertarian officials to dismantle the non-working nonsensical unconstitutional parts of our government and demand that the Constitution be followed in a logical consistent way and that the rights given to individuals in the Constitution are resuscitated.

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Employers Beware: What you need to know before checking the applicants Facebook page
As tempting as it may be to check an applicant’s Facebook profile as part of the screening process, there are some legal issues you should be aware of prior to doing so. First of all, a Facebook profile includes more than just work-related information. It could contain information about a person’s age, religion, race, national origin, sexual orientation, and associations. Making yourself privy to such information prior to hiring someone puts you at risk for a discrimination claim. If you wouldn’t ask for this information during an interview, you probably shouldn’t be collecting it from a social media site. If you are only checking Facebook profiles of those applicants who have profiles, you are treating your applicants differently. The overabundance of personal information on one candidate may cloud your judgment where it is not an issue with the candidate who does not have a profile. Facebook recently indicated that asking for a user’s password is a violation of Facebook’s Statement of Rights and Responsibilities. There are also several U.S. states that are considering legislation that would ban this practice.
With the proliferation of social media sites such as blogs, Facebook, and LinkedIn, and their increasing prominence in the business realm, it is not surprising that employers have begun to access the information posted on these sites in the course of conducting background checks on prospective employees. It is not a good practice, however.

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The District Court in Florida recently declared the new Health Care Law unconstitutional. Of course, this decision will still need to be appealed to the Court of Appeals and the Supreme Court, but the Judge carefully outlined the reasons for his declaration in the written opinion. Although I would have listed a few more reasons, I was impressed with some of the rationales he listed. I especially liked the fact that he went back to the actual language in the Constitution as it was intended when written. I know that is not the popular way to interpret the Constitution, but it does make sense. To summarize: Interstate commerce means interstate trade. Trade means the movement of goods in exchange for money. Insurance does in no way fall within this category. Insurance is a service, not a physical product which can travel in a truck on I-35 between Texas and Illinois. Basically, despite all of the reasons you may have heard about why this law is unconstitutional, the best one is the simplest one: it is not authorized under Section 1 Article 8 – the section which grants Congress the power to pass laws. The powers in this Article were enumerated in order to LIMIT federal government. As you can imagine this was a huge concern to our founding fathers.
There has been some talk of repealing the Health Care Act, but I hope this doesn’t happen. I would like to see the Supreme Court rule on this issue. If they do interpret the Constitution the way it was intended, they will find that Congress did not have the authority to pass this Act and it would open the door for States to bring other lawsuits concerning federal laws outside the purview of Article 1, Section 8, of the Constitution. I can envision California taking on the establishment of the DEA, for example, or the passing of laws that criminalized the possession of marijuana and made it a federal offense under the Commerce Clause. (Remember, police power is reserved to the States so the only way these laws could be passed and these agencies established was through a tenuous connection to interstate commerce. Of course, the commerce clause wasn’t intended to criminalize trade. Well, at least the sale of marijuana would fall under the definition of trade. The problem is that on the one hand Congress wants to force citizens to buy the services of for-profit corporations and on the other wants to prevent citizens from purchasing a plant. Neither type of law is authorized in the Constitution. Of course, our founding fathers were not averse to marijuana – it is believed that George Washington grew hemp on his farm.)
The bottom line is that the federal government has gotten out of control of the people. It is no longer acting as a government for the people, but rather as a government for more government. Congress is passing laws in areas beyond what the Constitution permits. This is not a right v. left issue or a liberal v. conservative issue. It is simply a matter of whether or not the States are going to permit the Federal government to continue down this road. It is up to us as citizens to elect state officials who will stand up to federal encroachment. The best way to get our country back and our economy out of the gutter is to vote. Vote in your state elections – they really matter.

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