You remember all of those calls for strict water conservation that we’ve been hearing throughout the Southeast over the past year, as we’ve been dealing with a pretty significant drought? Who would’ve thunk it, but local …

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To: Interested Parties
From: Mark Salter, Senior Advisor
Date: May 8, 2008
Re: Senator Obama’s Attack Today
First, let us be clear about the nature of Senator Obama’s attack today: He used the words ‘losing his bearings’ intentionally, a not particularly clever way [...]

Continue reading " McCain Campaign Responds to Attack by Senator Obama "

John Duffy, George Washington University Law School professor, has discovered that there is a constitutional flaw in the appointment process over the last eight years for judges who decide patent appeals and disputes.  He has written a short paper — http://www.patentlyo.com/lawjo… — documenting the problem, which may undo thousands of patent decisions concerning claims worth billions of dollars.

His basic point does not appear to be in dispute.  

The Constitution says that some government officials may be appointed only by the President, the courts or “heads of departments” like the Attorney General or the Secretary of Commerce.  The Board of Patent Appeals and Interferences hears appeals from people and companies whose patent applications were turned down by patent examiners, and it decides disputes over who invented something first.  Until 1999, the Secretary of Commerce appointed those judges.  The 1999 law changed that, empowering the Director of the Patent and Trademark Office to make the appointments.  The problem is that the Director of the Patent and Trademark Office is not a “department head”; he is actually the Undersecretary of the Department of Commerce.  ”That method of appointment is almost certainly unconstitutional,” Professor Duffy wrote in his paper, first published last summer on a patent law blog.  Every legal scholar seems to agree.

So since 2000, administrative patent judges have been appointed by a government official without the constitutional power to do so.  As a result, every decision of the Board of Patent Appeals and Interferences decided by a three-judge panel that included at least one judge appointed after March 2000 is arguably invalid.  A spokesperson for the Patent Office said that 46 of the 74 judges on the Board were appointed under the new law.

The Justice Department has already all but conceded that Professor Duffy is right. Given the opportunity to dispute him in a December appeals court filing, government lawyers said only that they were at work on a legislative solution.

They did warn that the impact of Professor Duffy’s discovery could be cataclysmic for the patent world, casting “a cloud over many thousands of board decisions” and “unsettling the expectations of patent holders and licensees across the nation.” But they did not say Professor Duffy was wrong.

The appeals court that oversees the actions of the Board of Patent Appeals and Interferences — the United States Court of Appeals for the Federal Circuit — ducked the question in January, because the losing company did not object until after the Court had already issued its decision. The company, Translogic Technology, which lost a judgment for $86 million, explained its delay by saying that it had not known of the issue until Professor Duffy published his article.

Translogic has now asked the Supreme Court to consider the question; the Court has not yet decided whether it will take the case.  The Court will soon decide whether to take up the question in the case involving Translogic, with $86 million at stake.

http://www.nytimes.com/2008/05…

Ordinarily, it is the job of the Assistant Attorney General for the Office of the Legal Counsel to review bills to make sure that they don’t run afoul of some obscure constitutional provision or other controlling law; they simply missed this one when the bill was drafted in 1999.  But the OLC never had a chance on this one.  Certainly, they never had a chance before it was passed; Congress didn’t even know what was in there.  Perhaps someone should have caught it over the Thanksgiving holiday, in the time between when it was passed on November 19, 1999, and when it was signed on November 29, 1999.  But Congress sure didn’t make it easy to figure out.  

Professor Duffy explains how the provision became law:

The statute responsible for changing the appointments process of BPAI members, the “Intellectual Property and Communications Omnibus Reform Act of 1999,” was enacted as one of nine bills that were “incorporated by reference” into the District of Columbia Appropriations Act of 2000. In other words, the text of the legislation voted on by Congress includes the only following language:

Sec. 1000.(a) The provisions of the following bills are hereby enacted into law: . . .

(9) S. 1948 of the 106th Congress, as introduced on November 17, 1999.  

Pub. L. No. 106-113, § 1000(a), 113 Stat. 1501, 1535-36 (1999).  The Appropriations Act then instructs the Archivist of the United States to find the nine bills referenced by the legislation and to publish those bills as “appendixes” to the U.S. Statutes at Large. Id. § 1000(b), 113 Stat. at 1536. (The Intellectual Property and Communications Omnibus Reform Act, which was S. 1948, appears on page 1501-1522 of the volume 113 of the Statutes at Large.)  Such an incorporation-by-reference method of enacting law may very well be constitutional, but to put it mildly, the technique certainly does not foster full consideration of the legislation by the members of Congress and the President. The normal legislative process typically includes multiple reviews of legislative language by different components of the government, including various divisions in the Department of Justice, such as the Office of Legal Counsel, that seek to identify constitutional problems in pending bills. It is thus quite possible, though difficult to know with certainty, that the incorporation-by-reference method of enacting the 1999 legislation helped the constitutionally infirm appointment structure to slip through the legislative process unnoticed.  

 http://www.patentlyo.com/lawjo…

A little legislative history is instructive here.

The first D. C. Appropriations bill that year was H.R. 2587, which passed the House 208-206, passed the Senate 52-39, and was vetoed by Bill Clinton.  It was loaded up with Republican poison pills — most notably, it prohibited using government funds for abortions in the District and it prohibited using federal funds for providing family employment benefits to gay couples.  Republicans did not even try to override the veto.

Then, according to the House of Representatives website — http://thomas.loc.gov/cgi-bin/… — H.R. 3194, the D.C. Appropriations Act, was introduced on November 2, 1999.  It was to provide funding for the D.C. government for the fiscal year that had already started.  Life had continued for the District with a continuing resolution, but clearly there was something of a push on to get a real bill approved.  It was passed on November 3 by the House, 216-210, after one hour of debate.  It was then taken to the Senate, where Senator Phil Gramm introduced a substitute bill in the nature of an amendment, which was approved by unanimous consent.  No roll call vote was taken.  http://thomas.loc.gov/cgi-bin/…

So by November 3, there were two different versions that had to be reconciled.  I have not read the two different 369 page versions of the bill, but the perfunctory nature of the amendment suggests that the Republicans were performing a classic maneuver to get the bill into a conference committee where, as students of the appropriations process know, is where all manner of skullduggery is committed.  

On November 17, 1999, the following bills were introduced into the House and Senate:

H.R. 3421 - Commerce Justice State Judiciary Appropriations;

H.R. 3422 - Foreign Operations Appropriations;

H.R. 3423 - Interior Appropriations;

H.R. 3424 - Labor HHS Education Appropriations;

H.R. 3425 - Miscellaneous Appropriations [0.38% cuts, offsets, international debt relief, etc.];

H.R. 3426 - Medicare, Medicaid, and SCHIP Balanced Budget Refinement Act of 1999;

H.R. 3427 - Foreign Relations Authorizations;

H.R. 3428 - Federal Milk Marketing Orders; and

S. 1948 - Intellectual Property and Communications Omnibus Reform Act of 1999 [satellite television, trademark cyberpiracy prevention, inventor protection, patent reform, Superfund recycling equity, etc.].

The next morning, at 3:06 a.m. on November 18, the conferees submitted a Conference Report that embraced 379 pages of the Congressional Record, and incorporated all of the 9 bills just mentioned by reference.  Those bills had not even been printed for general distribution to members of the House and Senate.  The bill had now become the Omnibus Appropriations bill, covering all nonmilitary spending, with a total pricetag of $385 billion.

At 3:42 p.m., the House began debate for one hour.  House Minority Leader Dick Gephardt spoke in favor of the bill:

Mr. Speaker, this has been an imperfect process, and this is an imperfect bill. But on balance, it has more to recommend it than not, and I will support its final passage. Procedurally, this bill repeats many of the same mistakes that were made last fall by the leadership. Despite the promises of the Speaker last January, once again we have a bill that was not done on time and was not done in regular order. We have an omnibus bill that reflects a “kitchen sink” approach to governing and, once again, Members did not have adequate time to read the bill to understand all of its provisions.

Congressman Mark Udall of Colorado also voted “no”:

Mr. Speaker, I want to explain why I voted the way I did on this bill.

  First, I had very serious concerns about the way in which this bill came before the House. It was a far-reaching measure, rolling into one oversize pile not just five appropriations bills but also several important authorization bills. It was filed in the early hours of this morning. I am confident that very few if any Members were able to read it all. Yet that is how it was, and we had to vote it up or down, with only limited time for debate and no chance to change it.

  This is not the way we should do our work. While we are already more than two weeks late, today we passed yet another continuing resolution to keep the agencies covered by this bill operating. So we had some time–and we should have taken the time to do things the right way.

  However, the majority’s leadership decided to reject that more orderly way of proceeding. We had to choose a simple yes or no. And, after careful consideration, I decided to vote against this bill.

… “Peekaboo” is something that’s fun to play with toddlers, but I don’t think we should be trying to pull it on the taxpayers.

http://thomas.loc.gov/cgi-bin/…

John Dingell voted for, with some reservations:

Mr. Speaker, once again a more curious process has produced an omnivorous end-of-session spending bill. It is fair–and accurate–to say that most Members of this body would fail a pop quiz on the contents of this legislation, given that it only became available for review late this morning, replete with handwritten additions, deletions and elisions….  the entire process by which the Republican leadership produced this massive package and brought it to the floor today is a travesty, and I hope to never again see it repeated.

The bill passed the House 296-135.  Nowhere in the debate on the bill is there any mention that this provision is even in there.

So we have a constitutional problem created by a Congress that produced an omnibus appropriations bill that it knew that its members would not have time to read.

When the courts look at this bill, I hope someone will comment publicly on the farcical process that produced it.

Continue reading " A Constitutional problem with judicial appointments "

Man, if I get any more news like this in my inbox, I’m just going to be crushed, I tell ya:

To: snappedshot
Subject: Your link has been rejected at Pakistan Web Directory
From: Faraz Ahmed <info@businesslinksdirectory….

Continue reading " What a Bummer! "

Continue reading " landed in albq "

Jeha is maintaining a nice map of the current battle/siege in Beirut. I’ll hotlink it for now, so you get the latest updates. Whenever he gets around to posting it to Google Maps, will get it updated asap.

Click to zoom…

Continue reading " Lebanon War Map "

Is there any wonder that the tax rate in Manassas Park is $1.24 per hundred of assessed value, drawing howls of protest from residents? From the MJM:
The Manassas Park City Council approved a comprehensive agreement with Blacksburg-based developer OWPR, Inc. Tuesday night to build a new Parks & Recreation Center at Costello Park.
The $22 [...]

Continue reading " The Abuse Continues In Manassas Park "

Hillary Clinton’s run for the presidency is nearly over. With Tuesday’s results in Indiana and North Carolina, Clinton would need to win something like 85% of the vote in the remaining Democratic primaries/caucuses to remain competitive: not a very li…

Continue reading " Endgame for Hillary Clinton "

Brian gives some great insight today on humor and politics. Check it out!

Continue reading " Kirwin on CNN "

For real: witches, yes, actual witches who are members of the radical anti-military organization Code Pink are going to attack the Marine Corps Recruiting Station in Berkley, California tomorrow as a means of somehow promoting peace.  Unfortunately for them, in this battle they seem to be rather poorly armed, declaring their intent to employ some [...]

Continue reading " The Most Mismatched Battle In History "

From the Glenn Nye for Congress campaign:
Most political emails you get offer you an opportunity to take action that will benefit the campaign’s bottom line. This is one that offers you the opportunity to take action that benefits your OWN bottom line.
Sign our petition to lower gas prices by rescinding corporate oil subsidies and [...]

Continue reading " You’re Being Charged Twice for Gas "

Just a bad thunderstorm at the moment… seems like it passed us over.

Continue reading " TORNADO! "

OOOoooooo! My area is in a tornado watch alert, but while we’re looking out for twisters, we have a BIG cell going through… No real rain at the moment, but LOTS of lightning all around, which is very exciting - I love a good rip-snorter of a thunders…

Continue reading " Thunder and lightning!! "

What in the heck is the Clare Boothe Luce Policy Institute thinking by having Kate Obenshain appear as their spokesperson on Hannity and Colmes tonight?  Kate Obenshain left her position as RPV Chairman and deserted her husband and children on Christmas Eve in 2006 in one of the most bizarre and disturbing episodes of recent [...]

Continue reading " Worst Spokesperson Of The Year Award "

Good for 2nd CD Democratic nominee Glenn Nye, unlike many other politicians (like Thelma Drake) actually offering real answers to our energy crisis.  Go Glenn!

Dear xxx,

Most political emails you get offer you an opportunity to take action that will benefit the campaign’s bottom line.  This is one that offers you the opportunity to take action that benefits your OWN bottom line.

Sign our petition to lower gas prices by rescinding corporate oil subsidies and investing in renewable energy.

Gas prices have gotten absolutely out of control.  As I’ve driven across the 2nd district speaking to voters, I see the escalating prices and how they are affecting our families.  I know how we feel the pinch every day.

The worst part is–you’re being charged twice.

One would imagine that while Americans are paying nearly $4 a gallon for gas and the high cost of fuel is hurting our economy in every sector, that the oil companies might at least need the $2.6 BILLION in tax breaks Congress has given them. However, these same oil companies are making record profits-in the first quarter of 2008, Shell alone made a record $7 billion in profit.  Its time we took those subsidies and turned them around to provide long-term relief at the pump.

The tax dollars that oil companies aren’t paying have to come from somewhere–and they’re coming from you.

If you’re tired of being charged twice, sign our petition.

Its time for our leaders to refocus our priorities on helping our constituents, not corporate contributors.  

Its time to make a investment that will lower demand for gas, diversify energy sources, and make our nation less dependent on foreign oil.

Is time to take action.

Its time to join together in sending a message to Congress that our livelihoods will not come second to the profits of big oil companies.

If you believe, like I do, that we need a change in policy that will lower gas prices responsibly, please sign our petition.

Best,

Glenn Nye

Candidate For Congress

Virginia 2nd District

Continue reading " Sign Glenn Nye’s Petition! "

Continue reading " Ron Paul Endorses Amit "

are not just words for 5th Congressional District challenger Tom Perriello, it is where his mind, heart and soul lay.The Ivy, Va. native has always strived to be of service, to both his country and his fellow man. Achieving Eagle Scout, receiving his l…

Continue reading " Common Good for the Commonwealth… "

Eerily similar to something one might have seen in the 50s during the height of the Cold War from the Kremlin, this little diddy is a nice bit of sloganeering and propaganda that bears little semblance to the truth ..Don’t believe? Go ahead and read t…

Continue reading " We Are The Ones Song (Propaganda) "

The telecom companies and their allies are trying to sneak telecom immunity by us while we’re not looking. There are negotiations in Congress as to “how” to pass immunity for companies that willfully and illegaly spied on us.That means that Sen. Leahy …

Continue reading " We Need To Keep Fighting FISA "

Can’t help but think of Hillary Clinton’s chances in this late primary state when we remember that it was this date in 1973 that militant American Indians who’d held the South Dakota hamlet of Wounded Knee for ten weeks surrendered to U.S. Marshals.

Continue reading " Grab Your Secret Dakota Ring "