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Judicial Watch, Inc. is a conservative, non-partisan educational foundation, which promotes transparency, accountability and integrity in government, politics and the law.

Judicial Watch, Inc. is a conservative, non-partisan educational foundation, which promotes transparency, accountability and integrity in government, politics and the law.

Because no one
is above the law!


Tom Fitton's Judicial Watch Weekly Update

Judicial Watch Joins AZ Legal Battle!

July 16, 2010

From the Desk of Judicial Watch President Tom Fitton:

JW to Represent Author of AZ Immigration Law in “Legal Battle of Epic Proportions” against Obama Justice Department

This week, Judicial Watch initiated perhaps the most important piece of litigation in its 16-year history.

On Thursday, we filed a “Motion to Intervene” on behalf of Arizona State Senator Russell Pearce, author of Arizona’s new illegal immigration law SB 1070, in the Obama Justice Department lawsuit challenging the law, which is set to take effect on July 29.

As I told you last week, Justice filed a lawsuit on July 6 against the State of Arizona and Governor Jan Brewer requesting a preliminary injunction to prevent the law from being enforced. (I included a general refutation of the Obama administration’s legal arguments last week, so I won’t repeat this week. But you can click here to review.)

So why is the Obama White House so desperate to kill this law? Because Obama knows if this law is allowed to stand, other states will follow Arizona’s lead. (In fact, a few states have already gotten a head start.) The federal government must then assume its constitutional responsibility to secure the border and enforce the law. And that is something President Obama is loath to do.

So here we are, alongside Senator Pearce, head to head against the Obama White House in the nation’s most controversial, most heated and most significant legal battle. Here’s an excerpt from our court filing explaining why Judicial Watch is representing Senator Pearce:

To further the interests of his legislative district and all citizens of Arizona, Senator Pearce authored SB 1070. On January 13, 2010, Senator Pearce introduced SB 1070 into the Arizona Senate. Over several months, Senator Pearce worked with his colleagues to enact a statutory scheme that made SB 1070 the public policy of all state and local government agencies in Arizona. Senator Pearce was the chief sponsor of SB 1070 and voted in favor of its passage. Senator Pearce’s efforts came to fruition when Governor Brewer signed SB 1070 and HB 2762 into law.

As the author and driving force behind the enactment of SB 1070, Senator Pearce has the right to defend it.

And here’s a statement from Senator Pearce explaining why he is undertaking this fight with Judicial Watch:

The purpose of SB 1070 is to protect the citizens of Arizona from the devastating and deadly impact of rampant illegal immigration. And it is outrageous that the Obama administration would attack Arizona for simply protecting its own citizens, especially when it has failed so miserably to do its constitutional duty and secure the border. This is a legal battle of epic proportions. As a Senator in a state on the frontlines, I see firsthand the damage being done to our state and our country. What happens here in Arizona will impact every state in the country interested in protecting its citizens by enforcing the rule of law. We are a nation of laws. We must have the courage — the fortitude — to enforce, with compassion but without apology, those laws that protect the integrity of our borders and the rights of our lawful citizens.

Look, here’s the bottom line: This is a fight between those who want to enforce the law and those who do not. We are proud to stand with Arizona State Sen. Pearce, Governor Brewer and the citizens of Arizona in support of the rule of law.

By the way, as yet another disgraceful example of the Obama Administration’s hostility toward enforcing illegal immigration law the Obama Justice Department announced this week that illegal immigration sanctuary cities can continue their illegal behavior without fear of prosecution.

Here’s the scoop according to Newsmax: “A week after suing Arizona and arguing that the state’s immigration law creates a patchwork of rules, the Obama administration said it will not go after so-called sanctuary cities that refuse to cooperate with the federal government on immigration enforcement, on the grounds that they are not as bad as a state that ‘actively interferes.’”

In other words, the Obama Justice Department just announced that states can feel free to “passively ignore” illegal immigration law. But the Obama Justice Department will only sue those states that seek to uphold the law!

Most Americans stand with rule of law on the issue of illegal immigration enforcement.

The legal battle is on, and this is a fight we can win.

Questions Abound on Eve of Kagan Vote

The Senate Judiciary Committee vote on the Elena Kagan Supreme Court nomination will take place next Tuesday (July 20). Republicans invoked their right to delay the vote by one week to further examine Kagan’s record. And while there are numerous issues and concerns regarding Kagan’s qualifications (or lack thereof) and liberal judicial philosophy, Obamacare was the issue of the week. The key question? To recuse or not to recuse?

According to Politico:

All seven Republicans on the Senate Judiciary Committee are pressing Supreme Court nominee Elena Kagan to say definitively whether she would recuse herself from litigation challenging the health care reform law that is the central legislative achievement of President Barack Obama.

“We are concerned about the standard you would use to decide whether to recuse yourself from litigation you participated in as Solicitor General,” the GOP senators wrote in a letter sent to Kagan Tuesday. “In particular, we are concerned about litigation that was clearly anticipated, but had not yet … reached the point where your approval was sought for filings or pleadings.”

The letter poses 13 questions, most of them focusing on a lawsuit 20 states are pursuing in federal court in Pensacola, Fla. against the health care legislation.

Sadly (though unsurprisingly), when Senate Republicans had an opportunity to question Kagan directly on the Obamacare issue, they failed to nail her down on it. Kagan did say, in a general sense, she would recuse herself from cases where she “participated in formulating the government’s litigating position.” But does this specifically include Obamacare?

Do not underestimate the importance of this question. If Kagan has to recuse herself, then Obama would be short a vote on the Supreme Court to validate the central policy initiative of his administration. And let’s be honest here, Kagan is Obama’s “ace in the hole” — a plant on the Supreme Court to validate his unprecedented government power-grabs, especially Obamacare.

If Kagan does not have to recuse herself from Obamacare-related litigation, it stands at least a decent chance of being upheld given the stance of the other three liberals on the Court, Kagan’s expansive view on regulating commerce, and the uncertainty of Justice Kennedy’s “swing vote.”

The key lawsuits challenging Obamacare were filed prior to her nomination. But did she help craft Obamcare legislation? Or help formulate the Obama administration’s constitutional theories and potential defenses against pending lawsuits (or other lawsuits that the administration expected would be filed)? Let’s hope we get some straight answers, and fast.

The uncertainty surrounding Kagan’s recusal issue is just one important reason out of many to oppose this nomination.

First and foremost, Kagan has no judicial experience and virtually no practical legal experience. For this reason alone she’s a terrible and irrensponsible choice. But just as importantly, Kagan’s record and the few clear answers she gave during her confirmation hearing indicate she is a radical leftist and a judicial activist. Her record is one of a political activist on behalf of far-left causes such abortion on demand and gay marriage.

Do we really want a Supreme Court justice with so little regard for the U.S. military (and the law supporting it) that she threw military recruiters off the Harvard campus in violation of the law while serving as dean of the Harvard Law School?

What does her hero worship of retired radical leftist judge Aharon Barak, described by Judge Robert Bork as perhaps “the worst judge on the planet,” say about her judicial philosophy? Nothing good.

If you want to review some of these key issues, check out the educational panel we held a few weeks ago for an excellent conservative overview on the Kagan confirmation battle. It is available here. We have more on the nomination at

President Obama has picked another nominee who meets his lawless standards for judicial nominations — judges who are results-oriented, are biased in favor of liberal causes or favored groups, and substitute their personal opinions and political views for the plain words of the U.S. Constitution.

Folks, there is still time for your voice to be heard regarding this nomination. Don’t believe the media hype that this is a done deal. The vote of the full Senate will not take place until August, so I encourage you to contact members of the Senate Judiciary Committee to express any views you have on Kagan’s nomination. A list of the members is here.

Judicial Watch Files Lawsuit against FHFA Over Key Fannie/Freddie Documents

American taxpayers’ financial commitment to propping up the corrupt organizations Fannie Mae and Freddie Mac is now $145 billion and rising. (Some analysts have suggested the total could ultimately be hundreds of billions of dollars or higher.) And yet, still no answers from the government as to why Fannie and Freddie failed in the first place, or why the federal government took the extraordinary step of assuming control of the two enterprises.

That’s why Judicial Watch filed a Freedom of Information Act (FOIA) lawsuit on July 12 against the Federal Housing Finance Agency (FHFA), the government agency that controls Fannie and Freddie (McKinley v. Federal Housing Finance Agency, Civil Action No. 10-1165 (HHK)).

This is one of four lawsuits in which we represent former Federal Reserve employee Vern McKinley, who is seeking documents related to the financial crisis. Our latest lawsuit seeks the following key documents:

[A]ny and all communications and records concerning or relating to the assessment of an adverse impact on systemic risk in addressing Fannie Mae and Freddie Mac, and in particular how the FHFA and the Department of the Treasury determined that conservatorship was the preferred option to avoid any systemic risk of placing Fannie Mae and Freddie Mac into receivership.

Mr. McKinley filed his FOIA request for these documents May 23, 2010. The FHFA acknowledged receipt of the request May 26, 2010, but has failed to produce any documents or demonstrate why documents should be withheld. The agency was required by law to respond by June 28, 2010, but has failed, once again, to indicate when a response is forthcoming.

By way of background, the decision to throw good money after bad with Fannie and Freddie began in the Bush administration.

September 7, 2008, in a joint press conference with former FHFA Director Jim Lockhart, then-Treasury Secretary Henry “Hank” Paulson announced that after examining “all options available,” Fannie Mae and Freddie Mac would be placed under “conservatorship” by the federal government.

“Based on what we have learned about these institutions over the last four weeks — including what we learned about their capital requirements — and given the condition of financial markets today,” said Paulson. “I concluded that it would not have been in the best interest of the taxpayers for Treasury to simply make an equity investment in these enterprises in their current form.”

Lockhart expressed support for the Treasury Secretary’s decision, indicating that he told the Treasury Secretary: “conservatorship was the only form in which I would commit taxpayer money to [Fannie and Freddie].”

If you read their statements, however, you can see that neither Paulson nor Lockhart explain the details of the analysis used by federal officials to justify the takeovers. For example, nothing has been detailed regarding why the option of conservatorship was chosen over another option under law — placement of Fannie Mae and Freddie Mac into receivership, a form of outright liquidation.

Frankly, if Fannie and Freddie had simply been liquidated, taxpayers would likely have saved tens and possibly hundreds of billions of dollars, depending upon what the ultimate costs are. (Given Fannie and Freddie’s mounting losses, one wonders why liquidation still seems to be off the table.)

But no, Paulson and Lockhart chose to take control of Fannie and Freddie instead, using taxpayer dollars to do the job. The Obama administration has literally doubled down on this decision. And here we are.

Sure enough, the FHFA requested additional funding for Fannie and Freddie in its recent report to Congress. And last December, the Obama administration pledged an unlimited amount of taxpayer dollars to keep Fannie and Freddie afloat, a commitment that was formerly capped at $400 billion.

Meanwhile, the Obama administration remains outright hostile to any attempt to obtain the information. (You’ll recall Judicial Watch filed a lawsuit against the FHFA to obtain documents regarding political contributions made by Fannie and Freddie. The Obama administration advanced the shocking claim in court that Fannie and Freddie are not subject to the FOIA open records law.)

This untenable secrecy continues despite the astonishing costs being borne by taxpayers. The Obama administration owes the American taxpayers the full details regarding the government’s decision to seize control of Fannie and Freddie.

Until next week…

Tom Fitton

Judicial Watch is a non-partisan, educational foundation organized under Section 501(c)(3) of the Internal Revenue code. Judicial Watch is dedicated to fighting government and judicial corruption and promoting a return to ethics and morality in our nation’s public life. To make a tax-deductible contribution in support of our efforts, click here.

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