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Pre-emptive Mootness

10:37 am in Executive Branch, Justice Department, LGBT, Military, Uncategorized by Cynthia Kouril

Bloomberg News sued the Federal Reserve to get information about a series of emergency loans made to Too Big To Fail banks in 2008. The suit, brought under the Freedom of Information Act (FIOA) sought  “the names of the banks that received loans from the Fed’s Discount Window in April and May 2008, along with the amounts they received and the collateral they promised”.

The Fed rejected the request. The suit then moved on to federal district court where Judge Preska ruled in favor of releasing the information. On appeal, the Second Circuit upheld that decision. The Clearing House Association, a group of banks trying to keep this information secret, filed a petition for a writ of certiorari to the Supreme Court of the United States.

Up to this point, the Department of Justice and the Board of Governors of the Federal Reserve had been fighting this litigation on the side of the banks. However, on February 18th, DOJ submitted its brief to SCOTUS and abruptly changed position. DOJ continues to assert that the 2nd Circuit erred in its decision, but essentially says “never mind”.

The reason for this? The Dodd-Frank Act set forth a standard that calls for a release of the very type of information that is the subject of the lawsuit, but only prospectively. This lawsuit is not literally moot. However the government has chosen to treat it as preemptively or prospectively moot.

Through the intervening enactment of the Dodd-Frank Act, Congress has resolved the question of whether and when the type of information at issue in the case must be disclosed on a forward going basis, for post-enactment loans.

.               .               .               .               .               .

Although the case is not moot because the Dodd-frank Act does not apply to the remaining pre-enactment discount window information at issue, the Act’s prospective standards ensure that the issue will not recur for post enactment loans covered by the Act.

.               .               .               .               .               .

Congress struck a balance between the government’s interest in preserving the confidentiality of the Board’s discount-window and emergency-loan related information and the public interest in disclosure of such information. The Act protects such information from disclosure under FIOA for a set period of time (one or two years), after which point the information must be released. [internal citations omitted] The Act governs precisely the type of information sought in this case. That means any holding as to Exemptions 4’s applicability to this information will have no impact on future FIOA requests for such information.

Think about this. The Act does NOT apply to this case, but if the government were to prevail on this case it would reach a result that is the opposite of a current act of Congress and would look absurd and hyper technical. So, the Solicitor General is taking a practical non-bureaucratic approach and saying that the government will go along and comply with Dodd-Frank before it is legally required to do so. This could be the genesis of a new legal doctrine, Pre-emptive or Prospective Mootness.

That doctrine would appear to apply with equal force to currently active prosecutions under Don’t’ Ask Don’t Tell. The Department of Defense currently finds itself in the logically untenable position of prosecuting service members under a law that Congress has already voted to repeal and the President has signed into law. Like the Clearing House case above, those prosecutions are not literally moot, because the repeal of DADT has not become effective or “gone live” yet. However, they hold the danger of reaching an absurd result.

DOD invests a lot of time and money training its service members and officers. Those members who are currently subject to separation prosecutions solely because of their sexual orientation, represent a total loss to their service branch of that investment. This is a hardship the Department should not have to bear. Likewise, loss of a career mere months, weeks or even days before the DADT becomes effective would be a brutal, ugly irony for the individual service members affected. The inherent unfairness of such a result would erode the credibility of the Department in the eyes of any practitioner of logic.

By adopting this pre-emptive or prospective mootness precedent, so helpfully set by the Solicitor General’s Office, the DOD could: 1) preserve its investment in its personnel, 2) do the right thing for the individual service members currently the subject of separation prosecutions, 3) provide peace of mind for service members worried about become the subject of such prosecutions during the remaining interregnum before full implementation of DADT repeal, 4) avoid an absurd result and concurrent loss of departmental credibility with the American public and the world at large.

Shorter version: jumping on this idea solves a whole bunch of uncomfortable problems and takes away embarrassment and injustice and clears a lot of messy stuff off the plates of DOD higher ups and lower downs. It’s a win/win.

Cucumber Salad

7:44 pm in Culture, Government, LGBT, Military by Cynthia Kouril

Over at the Great Orange Satan,  AndyS In Colorado wrote a wonderful send up of the DADT military spouse survey on which the Pentagon is wasting hundreds of thousands of dollars. Reports indicate the response rate to the Pentagon’s version is very low, suggesting that the soldiers, sailors and their spouses don’t think The Gay is any big deal.

The attitude is best described by the answer: Cucumber Salad (go read the Kos post and you will understand).

So, without further fanfare I present my grandma’s recipe for cucumber salad. It’s incredibly easy, very refreshing and  it’s perfect for a late summer BBQ or picnic, or a big global "Coming Out" Party.

3 cucumbers thinly sliced

1 sweet onion thinly sliced

Salt and pepper to taste

¼ cup vinegar

½ cup water

½ cup ice

Put in a bowl, let sit in fridge until the cold makes the cucumbers super crispy and the onion flavor begins to migrate. Serve with slotted spoon to avoid watery plates.

Promises Obama Can Keep Today, but Probably Won’t

12:42 pm in Government, Politics, Republican Party by Cynthia Kouril

A recent Politico piece posited that Obama is losing progressive, independent and swing voters because

The president’s reluctance to be a Democratic version of Ronald Reagan, who spoke without apology about his vaulting ideological ambitions, has produced an odd turn of events: Obama has been the most activist domestic president in decades, yet the philosophy behind his legislative achievements remains muddy in the eyes of many supporters and skeptics alike. There is not yet such a thing as “Obamism.”

In short, Obama is losing these voters because he has a PR problem. CNN offers similar "messaging" advice. I disagree.  The President does not need to improve his messaging, he needs to improves his substance.

There are distinct, non squishy, promises that Candidate Obama made over and over, which President Obama has utterly failed to act on.

Closing Gitmo: The President is Commander-in-Chief. He can order Gitmo closed TODAY. Don’t hand me any malarky about Lindsey Graham won’t allow funding for the closing. George W. Bush never worried about how he was going to pay for military spending, he just went ahead and did it and sent Congress the bill after the fact. Lindsey Graham is not the Commander-in-Chief (though I think he might have footsie pajamas with that title embroidered on it).

DADT: All this surveying and rule making is just a stall. We are not talking about whether to allow the induction of gays into the military, they are already serving in the military, taking showers, sharing barracks, the whole nine yards; all we are talking about is not forcing them to lie any more.  Again, the President has powers as Commander-in-Chief at his disposal.

Restoring the rule of law with terrorist trials:  This is the easiest on the list, because it doesn’t require the President to lift a freakin’ finger. All he has to do it stop undermining his own Justice Department.  Attorney General Eric Holder had a perfectly reasonable and feasible plan to return terror trials to civilian courts, where there has been a long history of successful prosecutions — sustained on appeal. Everything was under control, until some pinhead in the White House got his panties wet over a PR attack — by the Cheneys of all people — and Whoomp! the President starts undermining his own AG. Just call Holder, tell him you’ll stay out the way of his prosecutorial discretion henceforth, and let the man do the job you hired him to do. The same advice applies to investigations and prosecutions of the BP oil disaster. Rumors of White House micro-managing the investigation will only undermine public confidence in the outcome.

Getting tough on Wall Street:  Unlike the disinformation being spewed by your own press secretary, I don’t know too many progressives who opposed federal intervention to stabilize the banks. I do recall a HUGE number of teabaggers who opposed TARP, however. What drives most of the electorate crazy, is not that you gave the banks the money, it’s that you got NOTHING back for it. No caps on compensation schemes, no increased oversight, no increased transparency, no meaningful mortgage modifications (including write down of principal). Nope, it was just an outright giveaway. FDR you are not. The banks were powerless before you and you let a good crisis go to waste.

Although appointments are not promises per se, filling the government with people who want to carry out the policy proposals you campaign on, is fundamental to keeping those promises.

Recess Appointments:  Even the Supreme Court doesn’t buy the President’s act about how mean old Congress won’t let him get his people confirmed. What happened with Dawn Johnsen really shook up a lot of the true believers. The midterm elections of this presidency are upon us, yet there are still many major positions unfilled in the administration. A two-year transition is just crummy management. If the Chief of Staff is too incompetent to get your own people hired, give that responsibility to someone with decent management skills.  Please don’t let history record that Monica Goodling had more management skills than Rahm Emanuel. Really, the White House needs to get someone to do HR for political appointees? The President has recess appointment power — period.