"This has already been addressed and acknowledged -- not acknowledged, but addressed and dealt with.Title 18 of
the United States Code permits the government to proceed on
this basis. There is absolutely no issue about the Court's
jurisdiction. And I don't think I need any argument on that
point, Killercop." Judge A. Howard Matz
The burden of proof of jurisdiction lies with the asserter. The court is only to rule on the sufficiency of the proof tendered. See McNutt v. GMAC, 298 US 178. The origins of this doctrine of law may be found in Maxfield's Lessee v Levy, 4 US 330.
YOU CAN CATCH A DEAD FISH WITHOUT ANY JURISDICTIONAL HOOK.
A "jurisdictional hook" is a "'provision in a federal statute that requires the government to establish specific facts justifying the exercise of federal
jurisdiction in connection with any individual application of the statute.'" United States v. McCoy, 323 F.3d 1114, 1124 (9th Cir. 2003) (quoting
United States v. Rodia, 194 F.3d 465, 471 (3d Cir. 1999)), overruled on
other grounds by Gonzales v. Raich, 545 U.S. 1 (2005), as recognized in
United States v. McCalla, 545 F.3d 750, 756 (9th Cir. 2008).
"Covered jurisdictions are not now engaged in a systematic campaign to deny black citizens access to the ballot through intimidation and violence." ~Justice Clarence Thomas
U.S. V LOPEZ
My review of the case law indicates that the substantial effects test is but an innovation of the 20th century.
The three broad categories of activity that Congress may regulate under its commerce power are: a) the use of the channels of interstate commerce; b) Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities; and c) Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce.
We have said that Congress may regulate not only "Commerce . . . among the several states," U. S. Const., Art. I, §8, cl. 3, but also anything that has a "substantial effect" on such commerce. This test, if taken to its logical extreme, would give Congress a "police power" over all aspects of American life. Unfortunately, we have never come to grips with this implication of our substantial effects formula. Although we have supposedly applied the substantial effects test for the past 60 years, we always have rejected readings of the Commerce Clause and the scope of federal power that would permit Congress to exercise a police power; our cases are quite clear that there are real limits to federal power.
The substantial effects test has eviscerated any notion of federalism. Without boundaries ..., we give the federal government a blank checkto regulate anything under the guise of theCommerce Clause.
Even before Gibbons, Chief Justice Marshall, writing for the Court in Cohens v. Virginia, 6 Wheat. 264 (1821), noted that Congress had "no general right to punish murder committed within any of the States," id., at 426, and that it was "clear that congress cannot punish felonies generally," id., at 428.
Unless the dissenting Justices are willing to repudiate our long held understanding of the limited nature of federal power, I would think that they too must be willing to reconsider the substantial effects test in a future case. If we wish to be true to a Constitution that does not cede a police power to the Federal Government, our Commerce Clause's boundaries simply cannot be "defined" as being " `commensurate with the national needs' " or self consciously intended to let the Federal Government " `defend itself against economic forces that Congress decrees inimical or destructive of the national economy.' " See post, at 12-13 )Breyer, J., dissenting) (quoting North American Co. v. SEC, 327 U.S. 686, 705 (1946)). Such a formulation of federal power is no test at all: it is a blank check.
Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. See, e.g., Shreveport Rate Cases, 234 U.S. 342 (1914); Southern R. Co. v. United States, 222 U.S. 20 (1911) (upholding amendments to Safety Appliance Act as applied to vehicles used in intrastate commerce); Perez, supra, at 150 ("[F]or example, the destruction of an aircraft (18 U.S.C. § 32), or . . . thefts from interstate shipments (18 U.S.C. § 659)"). Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, Jones & Laughlin Steel, 301 U. S., at 37, i.e., those activities that substantially affect interstate commerce. Wirtz, supra, at 196, n. 27.
Now turn to consider the power of the Government, in the light of this framework, to enact §1028(A) or defend it's use in this case. The first two categories of authority may be quickly disposed of: §1028(A) is not a regulation of the use of the channels of interstate commerce, nor is it an attempt to prohibit the interstate transportation of a commodity through the channels of commerce; nor can §1028(A) be justified as a regulation by which Congress has sought to protect an instrumentality of interstate commerce or a thing in interstate commerce. One can not even show any proof of a transmission through any channel or even an instrumentality of interstate commerce, such as a phone, or modem or log file.
Here’s a hypo: assume a defendant hires a Las Vegas killer to murder the defendant’s wife in Reno, but the defendant never knows how the hitman plans to travel. If the hitman drives straight north on I-95 through Death Valley (staying in Nevada), the defendant is guilty, if at all, of some state offense only.
If the hitman gets a cheap Southwest flight from Vegas to San Francisco, though, and then drives a rental car to Reno – then the defendant has committed a federal crime. The defendant must induce the hitman to travel to murder, and (whether known to the defendant or not) the murderer must travel interstate, to satisfy the federal statute.
U.S. v. Alderman, No. 07-30186 (5-12-09). The 9th holds that the sale of body armor in interstate commerce creates a sufficient nexus between possessing the body armor and commerce to allow for congressional commerce clause authority. The majority (McKeown joined by B. Fletcher) feel that they have to follow the Supremes precedent in Scarborough v. U.S., 31 US 563 (1977) (firearm that travels interstate provides nexus) and 9th Circuit precedent in U.S. v. Cortes, 299 F.3d 1030 (9th Cir. 2002). The majority acknowledges the tension in the changing commerce clause jurisprudence, citing Morrison and Lopez. However, the statute closely tracks the one in Scarborough, and that the requirement that the body armor is sold or offered for sale in interstate commerce is sufficient. Dissenting, Paez argues that precedent does not control post-Lopez, because the connection to interstate commerce for possession by a felon is too attenuated. Section 931 requires no showing by the government that body armor involved a commercial transaction, substantially affected interstate travel, a crime, or possession of a firearm. There must be some connection, otherwise, as Paez argues here, mere intrastate possession of body armor by a felon not part of a comprehensive regulatory scheme and not connected to crime that affects interstate commerce, provides an insufficient commerce clause basis. The deficiency requires reversal.
Congress criminalized the possession of body armor by "violent felons." See 18 USC § 931. Within which of Supreme Court's three categories of federal Commerce Clause power does this statute fall?
Trick question -- turns out that the body armor statute is authorized by that that elusive "fourth" category of Commerce Clause power, explains the Ninth in a disappointing decision (sparking a powerful Paez dissent). United States v. Alderman, __ F.3d __, 2009 WL 1298056 (May 12, 2009), decision available here.
See ABA Task Force on Federalization of Criminal Law, Report,
(1998) (reprinted in 11 Fed. Senten. Rptr. 194 (1999)) (“The Task Force
concluded that the evidence demonstrated a recent dramatic increase in the
number and variety of federal crimes. Although it may be impossible to
determine exactly how many federal crimes could be prosecuted today, it
is clear that of all federal crimes enacted since 1865, over forty percent
have been created since 1970 . . . . [M]uch of the recent increase in federal
criminal legislation significantly overlaps crimes traditionally prosecuted
by the states.”).
is most true that this court will not take jurisdiction if it should
not; but it is equally true that it must take jurisdiction if it should.
The judiciary cannot, as the legislature may, avoid a measure because
it approaches the confines of the Constitution. We cannot pass it
by because it is doubtful. With whatever doubts, with whatever difficulties,
a case may be attended, we must decide it, if it be brought before
us. We have no more right to decline the exercise of jurisdiction,
which is given, than to usurp that which is not given. The one or
the other would be treason to the Constitution. Questions may occur
which we would gladly avoid, but we cannot avoid them.
In a similar case to Killercop's, a guy named Marks filed several pretrial motions in which he moved to dismiss the case against him
for lack of subject matter and personal jurisdiction. The court
denied the motions without a hearing, just as above.
Here is why the courts [judges] ignored the [jurisdiction] challenge in the above cases, spanning a period of at least twenty years that we now know of, in America.
The MARKS court said:
"Marks argues that the district court lacked subject matter
jurisdiction over the prosecution and lacked personal jurisdiction
over him because the government failed to meet its burden
of establishing jurisdiction once Marks challenged it."
Just as in the case above:
"Marks also argue[d] that the district court committed reversible
error because it summarily denied Marks’ challenges to the
court’s jurisdiction without holding a hearing."
A DISCUSSION OF A BURDEN:
burden of establishing federal jurisdiction is on the party
invoking federal jurisdiction. See Daimler Chrysler v. Cuno,
547 U.S. 332, 342 (2006); United States v. Sumner, 226 F.3d
1005, 1010 (9th Cir. 2000). That means the government actors.
OKAY, SO LETS SEE SOME BURDEN, SHALL WE?
"We review de novo a district court’s assumption of jurisdiction.
United States v. Bennett, 147 F.3d 912, 913 (9th Cir.
1998); see United States v. Anderson, 472 F.3d 662, 666 (9th
Cir. 2006) (“Jurisdictional issues are reviewed de novo[.]”).
WOW, A "REVIEW DE NOVO," THAT HARDLY SEEMS A BURDEN, YET.
"We review for an abuse of discretion a district court’s decision
whether to hold a hearing on a motion. See United States
v. Hernandez, 424 F.3d 1056, 1058 (9th Cir. 2005) (motion
to suppress); United States v. Bussel, 414 F.3d 1048, 1054
(9th Cir. 2005) (motion for a new trial); United States v.
Smith, 282 F.3d 759, 764 (9th Cir. 2002) (motion to substitute
counsel); United States v. Lazarevich, 147 F.3d 1061, 1065
(9th Cir. 1998) (motion to dismiss indictment)."
AGAIN, THAT HARDLY SEEMS A BURDEN, YET. LOTS OF REVIEWING, BUT NOT MUCH BURDEN.
HERE IS HOW THE COURT IN THE MARKS CASE MET IT"S "BURDEN":
[t]he district court had personal jurisdiction
over Marks "by virtue" of Marks’ having been brought
before it on a federal indictment charging a violation of federal
law. See United States v. Rendon, 354 F.3d 1320, 1326
(11th Cir. 2003) (citing United States v. Alvarez-Machain,
504 U.S. 655, 659-70 (1992)); see also United States v. Lussier,
929 F.2d 25, 27 (1st Cir. 1991)
(“It is well settled that
a district court has personal jurisdiction over any party who
appears before it, regardless of how his appearance was
obtained.”); United States v. Warren, 610 F.2d 680, 684 n.8
(9th Cir. 1980) (same). Moreover, the district court did not abuse its discretion
by not holding a hearing on Marks’ motions contesting the
court’s jurisdiction. Marks’ jurisdictional challenges were frivolous.
YOU DON'T HAVE TO MEET ANY BURDEN OR HOLD ANY HEARING, AND YOU GET TO DISMISS IT WITHOUT ANSWERING THE CHALLENGE, BY NOT MEETING IT OR RECOGNIZING IT.
Due Process is a course of legal proceedings according to rules and principles that have been established in a system for jurisprudence for the enforcement and protection of private rights. Due Process derives from early English Common Law. The first concrete expression of the Due Process idea embraced by Anglo-American law appeared in the 39th Article of Magna Carta 1215. (Encyc. Brit.)
Once jurisdiction is challenged, it must be proven." (Jagens v. Lavine, 415 S.Ct.768). "Jurisdiction can be challenged at any time, even on final determination." (Basso v. Utah Power & Light Co., 495 2nd 906 at 910). "Where there is an absence of jurisdiction, all administrative and judicial proceedings are a nullity and confer no right, offer no protection, and afford no justification, and may be rejected upon direct collateral attack." (Thompson v. Tolmie, 2 Pet. 157, 7 L.Ed. 382; Griffith v. Frazier, 8 Cr. 9, 3L. Ed. 471).
Contemptible police tactics - Cops raid the home of a licensed medical marijuana provider in Washington, handcuff the fourteen year old son and put a gun to his head, and search the nineteen year old daughter and take the contents of her mickey-mouse wallet.
How To Survive Traffic Stops in America, Submit, Instantly! - What the cops want is immediate obedience and submission. Many cops are ex-military and view the civilian motorists of America about like they viewed the hapless peasants of Iraq and Afghanistan, that is, with contempt, not as fellow citizens deserving of civility and respect. It is a possibly lethal mistake to do anything other than submit, instantly and obey! Or be ready to shoot first. But aim high.