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5 comments:
I took the time to read through that opinion, and while it does look good, there are two possible dark clouds still on the horizon:
1) the Bush administration will definitely appeal this ruling to the Supreme Court, and with the current makeup there's no way of knowing how that might turn out. (And, while it's on appeal, would it still have the effect of law?)
2) the majority opinion was harsh in its smackdown of the overreaching in the original law (taking particular note of the impact on individual citizens and their actions in the the privacy of their homes), yet made it quite clear that a revised version that reduced the breadth & scope of the law could pass judicial review. It might end up eliminating most of the worst record keeping requirements, but Congress might still find a way to get up all in the business of "commercial" interests at any level.
1) Don't be so sure that the administration will appeal -- it's likely, but far from certain. Yes, the ruling remains in effect while on appeal, unless it's stayed by either the court which issued the ruling or by the court of appeal (in this case, the Supreme Court), but that rarely happens; the legal standard is irreparable harm to the appellant in the absence of a stay and a showing of likelihood of success on the merits. But the reason that it may not be appealed is that it's only binding precedent in the Sixth Circuit. Other federal courts will take note of the ruling and may be persuaded by its logic (one of the reasons that appellate opinions tend to be very wordy, so other courts can be guided by them), but if the Supreme Court upholds the Sixth Circuit on appeal, it becomes binding precedent throughout the country. The administration may not want to risk it.
Even if the current administration appeals, the Court's docket is set until the next term begins in October. It's the next administration that would be arguing (or dropping) the case. Anyway, I'm happy to take my chances with the current Court. Justice Alito and Chief Justice Roberts are still too new to get a good idea how they'd vote, but I believe Justice Thomas would vote to uphold (this strikes me as the sort of case where he might even write one of his rare but eloquent opinions). With all four of the Court's liberal wing most likely upholding, that should be enough.
2) Even if it weren't for the law, I would most certainly check the IDs of my girls, and save copies of them. I don't really have a problem with recordkeeping requirements... I just don't want to slap my real name and address on this stuff.
Even if there's an appeal, it'd probably be just window-dressing, intended to score political points. Also to score political points, we may see Congress get off its collective lazy do-nothing ass and swiftly pass a new version of 18 USC 2257, lest the minority use "soft on child pornography" as a campaign issue.
Hey Red I purchased a video clip and could never get it to view. Can you help me on this matter??
Actually, it's not true that the Supreme Court docket is already set for this term; they continue to accept cases throughout the term. However, the criteria for accepting cases is quite strict, and the sense that a circuit might have made a "mistake" is not enough. If another circuit ruled the opposite way in a similar case, then the Supreme Court would have to resolve the circuit split, but for now, there's really no reason they would take this case.
Anyway, red, you're doing a great job so far, I look forward to seeing the full Victor and Company video eventually.
roger that bring on the video....great work so far
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