Federal Court Overturns Ruling That NSA Metadata Collection Was Illegal 151
New submitter captnjohnny1618 writes: NPR is reporting that an appeals court has overturned the decision that found the NSA's bulk data collection to be illegal. "Judges for the District of Columbia court of appeals found that the man who brought the case, conservative lawyer Larry Klayman, could not prove that his particular cellphone records had been swept up in NSA dragnets." The article clarifies that due to the recent passage of new laws governing how metadata is collected, this is of less significance than it would have otherwise been: "If you remember, after a fierce battle, both houses of Congress voted in favor of a law that lets phone companies keep that database, but still allows the government to query it for specific data. The three-judge panel of the United States Court of Appeals for the District of Columbia still decided to take on the case, because that new program doesn't begin until 180 days after the date that law was enacted (June 2, 2015.)" On top of that, the injunction from the earlier ruling never actually went into effect. Still, it seems like an important ruling to me: a government agency was willfully and directly violating the rights of the Americans (and international citizens as well) and now it's just going to get shrugged off?
it's just going to get shrugged off? (Score:2)
Yes!
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Well, it's not 'just' shrugged off -- this is the great US legal system. If a Federal appeals court judge should shrug, it is because s/he shrugs with the shoulders of giants.
Two fucking words (Score:2)
Well, it's not 'just' shrugged off -- this is the great US legal system. If a Federal appeals court judge should shrug, it is because s/he shrugs with the shoulders of giants.
Since you couldn't have spoke truer, I'll shoot for a little bit shorter: BOUGHT AND SOLD.
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Here's two more: Don't argue
Re:Two fucking words (Score:5, Informative)
Here's two more: papers please.
Congratulations, the US is well and truly on its way to a police state.
Now we're all fucked.
Freedom is slavery, bitches.
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Sorry, was the joke that bad?
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The 'AND' was Boolean. So it wasn't a word, but an operator. :-P
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And?
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That's true. First, a bunch of lawyers got paid. Then it was shrugged off.
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The Constitution is the supreme law of the land.
Anything that congress passes, that they don't have the authority to pass, is null and void: As if it never existed from the very start.
Any executive action that takes place under an unconstitutional statute is just as valid as an executive action that took place without the statute, i.e. not at all.
So yes, anything that is unconstitutional is necessarily illegal.
This is exactly how SCOTUS strikes down laws as unconstitutional: The laws stay on the books, but
You Can't prove Nothing (Score:1)
You can't prove that the illegal activity affect you, so it's not illegal?
What the actual fuck?
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Apparently only the 'victim' has standing to make a case, not a mere witness.
Re:You Can't prove Nothing (Score:4, Informative)
Apparently only the 'victim' has standing to make a case, not a mere witness.
I think it has always been that way. [wikipedia.org]
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Weird isn't it? If I witness a crime and fail to report it, I can get in trouble. But this? WTF? I mean, if a witness has no standing, then his testimony should be worthless.
Re:You Can't prove Nothing (Score:5, Informative)
Weird isn't it? If I witness a crime and fail to report it, I can get in trouble. But this? WTF? I mean, if a witness has no standing, then his testimony should be worthless.
As a victim of the State, you must prove harm to have standing for redress court. However, the State has no obligation to prove ANY harm to ANYONE to have standing to prosecute YOU.
Seems fair.
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It's the mafia defense. If nobody talks, everybody walks.
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That has nothing to do with it. Sovereign immunity is almost never invoked, because it is unnecessary with the system rigged the way it is. And besides, as long as you can show standing, suits involving Constitutional violations cannot be subject to sovereign immunity - it's part of the Ninth Amendment. Note that this particular suit names several federal agencies, executive officials (ALWAYS subject to torts for Constitutional rights violations), as well as the telecommunications and ISPs involved in th
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That amendment doesn't address sovereign immunity numbnuts
LOL. No, it doesn't but it was used in a very early SCOTUS case as allowing citizens to sue the Federal government when their rights were violated, and it stands today. Back then, people were also trying to sue states based on that, so the Eleventh amendment was created to bar citizens from suing states (granting sovereign immunity to them). That has never applied to the Federal government, or federal employees, when Constitutional rights (even non-enumerated rights) were allegedly violated.
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Civil and Criminal courts are two very different arenas. "Standing" in criminal court really isn't a thing.
Standing rules prevent random people from tying up the courts suing over things that don't affect them. They're really a necessary part of the system that most people don't think about. Non-newsworthy lawsuits are rejected all the time for lack of standing.
Of course, lawsuits that really should be going forward (like this one or the appeal by CA voters over Prop 8) are sometimes rejected on stan
Re:You Can't prove Nothing (Score:5, Insightful)
This is not new- same thing happened in 2007 (Score:5, Informative)
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In "American Civil Liberties Union v. National Security Agency" (2007), the United States Court of Appeals held that the plaintiffs did not have standing to bring the suit against the NSA, because they could not present evidence that they were the targets of the so-called "Terrorist Surveillance Program". https://en.wikipedia.org/wiki/... [wikipedia.org]
Time for a class action lawsuit?? By definition at least one citizen of the US is being spied upon in a domestic spying program. So if the plaintiffs include every citizen of the US, someone has to have standing.
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Ah, but can you prove that any individual in the class was affected? No? No standing.
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Then they invoke national security.
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so we're back the Catch22 of you can't prove standing because its classified, and because it's classified, we can't tell you if you were targeted.
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Apparently only the 'victim' has standing to make a case, not a mere witness.
I think it has always been that way. [wikipedia.org]
No, not always [wikipedia.org]
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Excellent point. Thanks.
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Neither a victim or a witness are bringing forth the case. In the case of murder the state has standing by virtue of the fact that an individual ignored a law that it set forth.
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Apparently only the 'victim' has standing to make a case, not a mere witness.
So I guess it's open season for murder, then.
Re:You Can't prove Nothing (Score:4, Interesting)
So I guess it's open season for murder, then.
I recently learned that necrophilic acts are not illegal in Massachusetts. So if you murder someone there is no downside (legally) to molesting the corpse.
Not quite sure what to do with this information, but I thought it was interesting.
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This is their standard way to avoid prosecution for illegal activity.
It's like the King of Id's golden rule "He who has the gold make the rules." only in both cases power should be substituted for gold.
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Love to. How about Global Thermonuclear War?
No proof, no proof (Score:5, Interesting)
1. Can't prove that you were affected because you can't get the records.
2. Can't get the records because they're either "classified" or they just don't answer FOIA requests
3. Can't get them declassified or revealed because you need to go to court
4. Can't go to court because you don't have evidence you were affected.
5. GOTO 1
Re:No proof, no proof (Score:5, Interesting)
Should be an interesting test of the Supreme court. As I understand the Roe V Wade decision had some pretty similar arguments. A lot of it came down to an issue of standing and it was determined that, while by normal standings rules, a person denied an abortion would not have standing to bring a case until injured, but if a pregnancy was life threatening, that would be an effective denial of right to sue.
This seems very little different to me....it is effectively a denial of right to redress of grievance if a person must prove standing in order to grieve while simultaneously needing to grieve in order to prove standing.
Not much different, seems to me they have to rule on the side of standings. I don't see why the government itself should be considered as an entity which cannot be compelled to self incriminate, it is not a person; and it is the entity which all such rights are intended to protect against the abuses of.
I would say a guilty government has a DUTY to self incriminate.
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The current court has proven there are no linguistic hurdles they won't leap to validate the administration's statist overreaches.
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Which is of course why I called it a test of the court and not a question for them. I have little faith they will pass.
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The term is "capable of repetition, yet evading review".
https://en.wikipedia.org/wiki/... [wikipedia.org]
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So... the government can do any unconstitutional thing it wants as long as no individual has standing to contest it.
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The government doing anything unconstitutional automatically grants every citizen the right to sue.
In fact, every citizen has the right to sue the government for anything, unconstitutional or not.
Hell, every citizen has the right to sue the government for nothing.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
A lawsuit is nothing more than a legal petition for a redress of grievances.
The court will determine the validity and extent of such grievances in a trial.
The court absolutely cannot reject a case by presupposing the facts of the matter (are the gr
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Yes, but that doesn't appear to be how they are operating. The court didn't take his grievance and make a determination about the legality of the governments actions. They only looked at the available proof of harm to the individual. I understand that approach is generally sensible, but it doesn't leave us the best options when we want to prove that a broad set of actions is unconstitutional without linking it's harm to a specific victim. I have to wonder how it would work out if we had a class action where
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I'm just waiting for the day of
"well yes, we used billions of tax dollars to build ourselves a palace walled with gold featuring life-size cola and chocolate fountains. But you can't prove that they were *YOUR* specific tax dollars so you have no right to sue!"
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and if they do, the individual disappears.
Or in Snowden's case, makes himself disappear.
If this does not prove police state, what does?
No Subject (Score:1)
Is the problem merely him not being able to prove he has standing? Could be simply get them to admit he does with a FOIA or other action? The NSA would have a conflict of interest giving material to prove that they did or didn't do it. Is there a third party that can sort this out in their place? NIST? Hell, give it to NASA to give them some more money. They need it, and their sysadmins might be bored.
It should be noted... (Score:5, Interesting)
...that Obama can stop this with a simple phone call. And he can make sure it doesn't happen again with a stroke of his E.O. Pen.
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Great hope isn't it when a constitutional lawyer who gets elected and hands the US government over to corporate interests.
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Great hope isn't it when a constitutional lawyer who gets elected and hands the US government over to corporate interests.
Who else would better know how to make that happen?
Consider that few people could inflict more horrible bodily torture than a skilled physician.
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Great hope isn't it when a constitutional lawyer who gets elected and hands the US government over to corporate interests.
Aren't you just adorable!
But listen sweetie, the US government was handed over to corporate interests long before the current administration, mkay? Now, go back to playing with your Speak and Spell.
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You shouldn't have. He backpedaled on this specific issue regarding the FISA bill before he even got elected.
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Whether he could stop this or not is not as clear as that. If an appointee requires Senate approval, the President cannot actually fire them. Now we move on to the concept of the E.O. more broadly. An E.O. is difficult to enforce as penalties have not been established. This creates a problem in enforcement when one cannot merely cut off funding.
What the President can do is declassify just about anything. But the circular logic applied in this case itself shocks the conscience and thus should be removed from
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The President can fire any cabinet member at will even those requiring Senate approval. The Senate only comes into play when you try and hire a new cabinet member.
There was a law about firing without Senate approval called the Tenure of Office act, but that was repealed in 1887.
So yes, if he decided to fire an executive branch officer who disobeyed his directives, he totally could.
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Yes...this.
They've got the dirt on Obama, he is their lapdog (Score:1)
Whistleblower says NSA was wiretapping Obama since before he was a senator [youtu.be], so they pretty much have everything on him, or at least enough to let them do whatever the fsck they want.
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Yep, her sure can. The fact that he hasn't in six+ years speaks volumes.
Umm, no. Actually he can't.
Yes, he can make an Executive Order making this go away, if he chooses.
Alas, the next President (or even Obama himself, afterwards) can make an Executive Order allowing this to restart. One President's Executive Orders are not binding on later Presidents if they choose to use t
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Why do you think he doesn't? Obama is the reason I'm so suspicious of Bernie Sanders today - I've been fooled about a good guy who wants to clean up Washington before.
You shouldn't have been fooled by Obama. He clearly indicated what he was going to do before getting elected. He went out of his way to vote for immunity for telecoms for spying. He is acting exactly as he indicated he would.
If you thought he wouldn't support the NSA, you either weren't paying attention, or you were a fool.
Fucking cowardly judiciary (Score:5, Interesting)
U.S. federal judges, you are fucking cowards with your bullshit deference to executive-branch "privilege". You let the administration use bullshit tactics to pervert justice, and you use that as an excuse to not protect citizens' fundamental, Constitutionally enumerated rights. You demand that citizens prove that which cannot be proven without committing a crime, but let the administration just bleat "executive privilege" or "state secrets" or "it's for the kids", and consider that doing your job.
Assholes.
Re:Fucking cowardly judiciary (Score:5, Informative)
U.S. federal judges, you are fucking cowards with your bullshit deference to executive-branch "privilege". You let the administration use bullshit tactics to pervert justice, and you use that as an excuse to not protect citizens' fundamental, Constitutionally enumerated rights. You demand that citizens prove that which cannot be proven without committing a crime, but let the administration just bleat "executive privilege" or "state secrets" or "it's for the kids", and consider that doing your job.
Assholes.
They are not cowards. They are vile, complicit scumbags who want things to be this way.
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getting close to the last box (Score:2)
IANAL (Score:3)
It's unlikely it ever ends up before SCOTUS since it was swept under the rug legislatively, but let's not misunderstand this as a sweeping judicial approval of the program.
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You are right about the DC Court of Appeals, but the ruling in question is a ruling of the United States Court of Appeals for the District of Columbia Circuit, which is a US Federal Circuit Court of Appeal.
So yes, this is a Circuit court opinion which will be resolved by the Supreme Court on appeal. And they are more likely (although not certain) to hear the appeal if there is a Circuit split involved.
Sweeping may not be the word for it, but it is a very influential decision.
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capable of repetition yet evading review is the term here.
Did NOT rule the program constitutional. (Score:5, Informative)
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It's a very problematic ruling, raises a lot of issues, and in my opinion should be reversed...
I am interested in why it is problematic, and what issues it raises. In the interest of saving this article's comments from the hordes of "oh my god we're gonna die the NSA will be able to name our children due to this ruling!" can you elaborate? Thanks.
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Can't prove standing without records the government refuses to release, can't do anything about the program collecting those records without standing. Catch-22.
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Wut?!?!
Per the decision: [uscourts.gov]
The preliminary injunction entered by the district court is hereby vacated and the case remanded for such further proceedings as may be appropriate.
It doesn't overturn the previous finding that the program is unconstitutional - it makes it like that finding never existed in the first place.
That's not what that means. The appellate court vacated the preliminary injunction, they did not reverse a legal determination on constitutionality. As one of the other commenters noted, I actually oversimplified the ruling - they didn't even determine that the plaintiff definitely can't pursue the case, they just determined that he can't get a preliminary injunction because there aren't enough facts to support his standing yet.
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"The appellate court explicitly did NOT "overturn" the district court's substantive finding that the program is unconstitutional. This ruling is procedural, and unrelated to the merits of the legal arguments about constitutionality of the NSA program."
+1 for that part of your comment.
"The court instead found that this particular plaintiff does not have standing to challenge the program in court."
-1 for that part of your comment. They didn't rule that he didn't have standing (well, 1 of the 3 judges did, but
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"The appellate court explicitly did NOT "overturn" the district court's substantive finding that the program is unconstitutional. This ruling is procedural, and unrelated to the merits of the legal arguments about constitutionality of the NSA program."
+1 for that part of your comment.
"The court instead found that this particular plaintiff does not have standing to challenge the program in court."
-1 for that part of your comment. They didn't rule that he didn't have standing (well, 1 of the 3 judges did, but the majority did not), or that the trial can't proceed. They simply said that there's not enough evidence of standing shown in the pre-trial phase for an preliminary injunction (which they say requires a higher bar than the standing requirement needed to proceed with the trial). The trial can proceed, where more evidence can be obtained and presented.
BTW - the latest empytwheel.net post highlights some brand new evidence showing that the plaintiff has standing.
You're right. I oversimplified it. They found that, based on the record as it stands currently, there is not adequate evidence to show standing - but there might be later after more discovery. The case is not dismissed, the preliminary injunction is just denied.
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What happened to the legal standard that new laws cannot be applied ex post facto?
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What happened to the legal standard that new laws cannot be applied ex post facto?
I don't understand how that relates to this situation. A prohibited ex post facto law is one which criminalizes or imposes a penalty for an act which occurred before the law was enacted. For example, a new law which raises your taxes for last year and makes you pay the difference now. Or a law which makes it a crime to have previously consumed alcohol before the law was passed. This does not seem related to the case at hand.
So, effectively, all NSA data collection is legal (Score:4, Insightful)
.
Sounds like good, self-serving logic for the NSA.
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Changes nothing... (Score:2)
... the industries effected and the public at large assumed nothing less would happen. The Feds generally have an attitude that if they CAN do a thing technically that they can do it legally.
There is a difference (Score:3)
When a technicality of law provides an otherwise guilty individual to walk, that really is justice. Because the very principles of justice are about keeping state power in check.
When the technicalities of law are used to prevent citizens from challenging state power, that is an absolute perversion of the spirit of the principle. That is NOT justice.
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No, that isn't justice, it is a bias against the possibility of injustice being worked on the innocent when due process and proper procedure is not employed or there is insufficient evidence.
Justice for the guilty still remains due, we simply hold that it is better for a guilty man to walk free than an innocent man go to jail. Justice has been denied, but we accept the need for that against the possibility of ensuring perfect retaliation for all injust acts, which would allow a much lower standard of evide
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Well then I guess by your definition of justice, it is something I would never really care too much about, an insignificant and petty thing.
Appeals (Score:2)
a government agency was willfully and directly violating the rights of the Americans (and international citizens as well) and now it's just going to get shrugged off?
Apparently this person doesn't understand the process of appeals, and why it is important.
Legal Standing (Score:5, Interesting)
Another standing based evasion of the 4th amendment. As long has you have to prove a negative you have personally been the victim of a clandestine program or any government program for that matter the Constitution might as well be toilette paper.
All they have to do is classify the records and its essentially game over.
What we need to do is push for legislation that lowers the bar for legal standing in cases against the government. It should be very low. Once the program is proven to exist it should be open to challenge on the complain it violates any other laws or violates anyone's Constitutional rights. The fact that its supposed to be a government by the people and for the people, means that we the people should have automatic standing anytime the government is violated laws or the Constitution we the people enacted. The grounds should be a failure to lawfully govern, the harm being undermining societies faith in law.
This is the only way we are going make any headway.
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There is always the consideration that lowering the bar tends to increase the caseload and thus, hinder the functioning of the courts, which can cause its own problems.
There may well be a case for changing how standing is determined for certain specific cases like this, but this needs to be work done with a scalpel or you could hopelessly bog down the Federal court system.
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To get past the 4th amendment everyone doing the collect it all domestic surveillance is always told its just for foreigners.
The key seems to be the:
'But such is the nature of the government’s privileged control over certain classes of information. Plaintiffs must realize that secrecy is yet another form of regulation, prescribing not
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This approach could go a long way to protecting some pretty heinous hypothetical government abuses. People could be disappeared and, as long as they didn't have family that could claim damages, the government could claim that nobody has standing to challenge the practice. This is a very dangerous line of reasoning.
Duh! (Score:3)
Only the fools think there is "freedom" here in the USA.
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Only the fools think there is "freedom" here in the USA.
Theres heaps of freedom in the USA if you have the money to pay for it! Thats the market at work!
Guess the NSA had his Ashley Madison data (Score:1)
Sure it's illegal for the NSA to use it to force the judge to rule that way, but that has never stopped them in the past.
Subvert, destroy, confuse. Supposed to be the enemy, but used against the USA more than our real enemies.
international citizens (Score:2)
international citizens
International citizens have rights in US courts?
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I'd step away from that partisan comment. If the President was a Republican, then liberals would be complaining.
The problem isn't with liberals going after conservatives or vice versa. The problem is that there exists a power which allows whoever is in charge to go after those they don't like. If the Republicans are in power, they'd use it as much as the Obama Administration does.
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Ah, that explains the good relations between him and the Republicans in Congress.