Separation of Powers: U.S. appeals court finds Federal Housing Finance Agency structure unconstitutional - “headed by a single Director removable only for cause, does not depend on congressional appropriations, and evades meaningful judicial review.”
Art 1 Sec 8 Naturalization – in preliminary ruling, U.S. judge declines to strip citizenship from Pakistani-born Al Qaeda Brooklyn Bridge plotter
1A: In win for free speech, IRS exempts charities from disclosure of donor names and addresses
1A: federal appeals court rules most injunctions against libel are unconstitutional prior restraints; law unsettled, Supreme Court will have to weigh in
1A/4A: civil libertarians questioning NYPD’s combing through social media tweets to use in arrests and gang takedowns
1A Religion: federal appeals court permanently blocks trial judge’s order granting abortion chain’s demands for private communications of non-party Texas bishops
1A: teen who told her boyfriend to kill himself claims it was free speech
Free Speech: U of Minnesota considers expelling students for failing to use preferred transgender pronouns. (Phase 1: make your ideas ubiquitous. Phase 2: shut everyone else down and crack their heads.) #FreeYourInnerFascist
Free Speech: Use the harm of ‘offensive’ speech to curb free speech? Think again: “Nazis with the freedom to speak can cause less harm than Nazis with the power to regulate speech.”
1A: a ‘right to be forgotten’ – when it results in orders to media to delete archived stories - is inconsistent with the First Amendment
2A: federal appeals court upholds preliminary injunction against California’s ban on high capacity magazines
2A: gun groups sue California for botching online gun registration system and putting people who attempted to comply at risk of arrest
2A: vet fights warrantless seizure of his registered guns and wins
2A: Yes, they ARE coming for your guns. NY Dem candidate laments she can’t come out as a gun-grabber until after the election
2A: if illegal alien girls stepping one toe over the border have due process rights to abortions, don’t they also have the right to bear arms? #CarefulWhatYouWishFor
4A: mass strip-search of 22 middle-school girls unconstitutional, federal appeals court rules
5A Eminent Domain: Kelo one of the worst decisions ever; will Kavanaugh stand up for property rights?
8A: U.S. appeals court rules there is no constitutional right to cash bail in lieu of non-monetary conditions for pre-trial release
10A: activists gathering signatures for ballot initiative to reverse California immigration policies; stunning number of signatures gathered in Oregon for anti-sanctuary measure
14A: New Hampshire Governor signs voter residency requirement into law after state high court advises it’s constitutional
14A Equal Protection: unprecedented and confusing - U.S. judge finds Jews are a ‘race’ entitled to civil rights protection on the basis of race. My question: Are Moroccan Muslims the same ‘race’ as Indonesian Muslims? CAIR wants you to think they are.
14A: another case of political bias in public accommodations (Uber) – is this what we want?
ERAUSANOW TITLEIX @ERAUSANOW Jul 12
Replying to @LiberatoUS
You are sadly mistaken
Liberato.US @LiberatoUS Jul 12
Amendments: the Constitution already protects women; Equal Rights Amendment is useless and dangerous
7/18 response: Well, that was clear as mud. Not well argued. BTW: what happened to your website (ratifyera.org)? Did you lose your funding?
Oshtur @Vishanti Jul 12
Replying to @LiberatoUS
No, all it does is say there must be religious neutrality in applying the law. A complaining parent should be treated the same whether their complaint originates from religion or secular prudery, that’s all.
Liberato.US @LiberatoUS Jul 12
Using Masterpiece to full advantage: constrains public agency treatment of religious belief; could block teaching radical sex ed agenda to schoolchildren http://www.missionamerica.com/article/free-school-sex-ed-slaves-after-cakeshop-decision/ …
7/18 response: If that were true, Justice Kennedy would not have gone on at length about public officials’ hostility towards religion being fair game. Good luck confining Masterpiece to your overly-narrow reading.
14A Due Process: NY court reminds everyone that student disciplinary proceedings are not kangaroo courts and do require due process
Appointments clause: U.S. judge says members of Puerto Rico financial oversight board constitutionally appointed
State Constitution: class action alleges student fees contravene Idaho guarantee of free public education
14A birthright citizenship seen as negating threat blacks would be forcibly removed, thus transforming the country
“Happy 150th Birthday, 14th Amendment” – hear the story of its origins, drafting, and ratification
New short video from Potomac Tea Party: Citizens, Give Up Your Guns! - Why We Have the Second Amendment
Travel Ban? Sanctuary Cities? Everything You Always Wanted to Know about Immigration and the Constitution (radio archive)
10A: preliminary ruling knocks down most of Trump effort against California sanctuary state laws, but employers may still cooperate with ICE
Art I, Sec 2 / 14A: lawsuit objecting to citizenship question on census allowed to proceed
+ It’s all about the money.
14A Due Process: suit against Trump campaign and Roger Stone for DNC email hack dismissed for lack of personal jurisdiction
Janus fall-out: Supreme Court removes bar against class actions against unions for recovery of forced dues
Art I, Sec 8: measure offered to reclaim congressional authority over tariffs
1A/14A: Wisconsin Supreme Court rules Marquette U breached employment contract by suspending prof for blog post
1A free exercise: Supreme Court orders another look at qualified immunity case brought by woman police ordered to stop praying in her own home
1A: Supreme Court takes retaliatory arrest case – is it retaliatory if probable cause to arrest exists, but arrest likely would not have happened without constitutionally protected speech?
Chuck Schumer Asks If Mosques Will Be Monitored For “Hate Speech” - Gets Threatened With “Hate Speech” Prosecution For Asking. Then I woke up and realized I live in a country with free speech.
FEC itching to further regulate political speech on the Internet; clamp down on viewpoints they don’t like
Free Speech: “Refusal to Use Preferred Gender Pronouns Costs British Doctor His Job” #FreeYourInnerFascist
NYT: Conservatives have too much free speech. It’s just not fair. #FreeSpeechForMeButNotForThee
The Left is pushing to make free speech a collective right that is the sole property of the government and certain privileged demographic groups, not individuals
1A Establishment of Religion – group files complaint over Bible in POW display at Okinawa naval hospital
1A Establishment of Religion – Christian group sues Boston over refusal to allow Christian flag at City Hall during nearby event
2A: “26 Illinois counties have passed ‘gun sanctuary’ resolutions.”
2A: “Republican Gov. Charlie Baker signed a bill on Tuesday allowing for temporary gun confiscation without any due process in Massachusetts”
2A: Here’s how many dictators took over the U.S. today – ZERO. Thank you, Framers, for the Second Amendment! Rebutting mindless CBC story here -
2A: UN Programme of Action on small arms is an assault weapon aimed at the U.S. Second Amendment
4A: conservatives on the Supreme Court continue to misapply the 4th Amendment, failing to rein in administrative subpoenas issued without probable cause.
8A: Colorado Supreme Court case presents question whether Eighth Amendment (via incorporation doctrine) protects corporations against excessive fines by a state
14A Equal Protection: it’s time to evaluate effects of disparate impact theory (“why does the agency believe disparate impact liability will survive strict scrutiny? What's the compelling interest? [Is] it narrowly tailored to achieve that purpose?”
14A Equal Protection: group asks for full-Third Circuit review of order opening Pennsylvania school’s restrooms and locker rooms to transgender students
14A Equal Protection: Trump admin junks Obama guidance promoting race to achieve diversity in college admissions
Equal Protection – #WalkAway guy was denied service; another case of political bias in public accommodations. Apparently legal in New York. #NewYorkDiscriminates
14A Due Process: federal judge rules there is no fundamental right to learn to read and write in suit against Michigan officials for failing Detroit schools
14A Due Process: in victory for Planned Parenthood, preliminary injunction blocks as undue burden Indiana law requiring info on patients with abortion complications
Deference: Mississippi Supreme Court scuttles deference to state administrative agencies
Appointments Clause: Russian firm accused of election meddling moves to dismiss case on grounds Mueller unlawfully appointed
State Constitutions: “Hunting and fishing constitutional amendment passes, heads to NC voters”
Article V Convention: lawsuit against 2017 Missouri Convention of States resolution dismissed (N.B. – COS hasn’t gotten anywhere this year)
Amendments: ‘evolving Constitution’ jurisprudence is stunting the amendment process
Amendments: the Constitution already protects women; Equal Rights Amendment is useless and dangerous
Using Masterpiece to full advantage: constrains public agency treatment of religious belief; could block teaching radical sex ed agenda to schoolchildren
Art IV Sec 3: meaning of constitutional provision on formation of states could be tested if initiative to break California into 3 pieces passes
The two faces of Justice Sutherland’s jurisprudence: blessed limited government in domestic affairs, but enabled imperial presidency in foreign affairs
Essay on the meaning of the Declaration of Independence – pegs the natural rights foundation of the American Idea
Worth more than a Monet! “10 fascinating facts about the Declaration of Independence”
Country music group slams Facebook for censoring patriotic song ‘I Stand for the Flag’
Shame! Extreme Left St. Paul Mayor cancels July 4th fireworks because they ‘cost too much’, but private donations would have covered the cost
Tonight, I have an update for you on the Trump administration’s lawsuit against California’s state sanctuary laws. This one, so far, is going as observers expected – in other words, not well. A federal judge on July 5, 2018 refused to grant the Justice Department a preliminary injunction against California’s statute prohibiting state and local law enforcement officials from sharing information about criminal aliens in their custody with federal officials. The judge also declined to grant a preliminary injunction against the California law allowing state inspections of local and privately run jails, which depends on getting access to federal records about prisoners. The judge did, however, block parts of a third law, including provisions that tried to ban private employers from cooperating with federal immigration officials on immigration raids and other matters. So, as observers expected, the strongest part of the Justice Department’s case was upheld, at least for now. This is all preliminary, not final, and the case goes forward. The judge was sympathetic to the anti-commandeering argument which prevents the federal government from forcing state and local officials to help enforce federal laws. The judge said “refusing to help is not the same as impeding” and that standing aside is not the same as standing in the way.
In May 2018, the Trump administration announced a “zero tolerance” policy under which all adults entering the United States illegally would be subject to criminal prosecution and all minor children would be separated from their parents. In June, in response to public pressure, the President issued an executive order ending the practice of separating families. But the order did not address the reunification of more than 2,000 children already separated from their parents. Prior to the executive order, a federal judge in San Diego found that the illegal aliens entering the United States under the circumstances presented have “substantive due process rights to family integrity” under the 5th Amendment to the U.S. Constitution. After the executive order, the judge issued a preliminary injunction giving the administration up to 30 days to reunite all children affected by the “zero tolerance” policy with their parents.
The Trump administration had argued unsuccessfully that families separated at the border when the parents claim asylum have no constitutional right to remain together. But in his first ruling, the judge talked about the “sacred bond between parent and child” and said he found the practice of family separation inhumane. Observers have said there is a due process “right of family integrity” dating from Supreme Court cases in the early 20th Century.
The Flores agreement that has gotten so much publicity lately, among other things, stipulates that children coming across the border illegally accompanied by their parents have to be released within 20 days. The Trump administration said the Flores agreement is the reason it could not keep families together – the parents are detained indefinitely but the kids are supposed to be placed in 20 days.
Last I heard, the Trump administration is looking for space on military bases to detain families together. The administration says this would satisfy both the Flores agreement and the San Diego judge’s order. The judge in San Diego recently said “nothing in his order takes away the government’s discretion to either detain or release parents in immigration custody; keeping families together is the key.”
What’s odd is that the Flores case – which gave rise to the Flores agreement – specifically found there is NO due process right for children of parents detained for deportation hearings to be placed with their parents, close relatives, or legal guardians. So it’s conceivable that higher courts could reverse the district court judge’s findings, but I personally doubt the government will take the case that far.
14A Equal Protection: Supreme Court upholds Trump travel ban, rejects claim of anti-Muslim bias
National Injunctions: Supreme Court refuses to rule on nationwide injunctions in travel ban case, but Justice Thomas calls them ‘historically dubious’
National Injunctions: federal appeals court panel confines sanctuary city grants injunction to Chicago; full court to hear case
National Injunctions: the law is all over the lot, but the Gill case is glide path to ending the practice
Commerce Clause: Supreme Court OKs state sales taxes on online purchases
4A: Supreme Court rules police must obtain a warrant to search cell-site location data (Carpenter)
1A: Supreme Court rules public sector union employees can no longer be compelled to pay union dues related to cost of collective bargaining (Janus)
1A: flurry of class actions already filed by public sector employees to recover mandatory union dues paid against their will
1A: Supreme Court rules pro-life pregnancy centers cannot be compelled to provide free advertising for the abortion industry
Separation of Powers: federal judge rules structure of CFPB unconstitutional (independent agency with a single director); conflicting decisions mean Supreme Court will probably take up the issue
1A Religion: federal appeals court blocks abortion chain’s demands for private communications of Texas bishops
1A: Supreme Court sends Christian florist case back to lower court for reassessment in light of Masterpiece decision
“Killing Free Speech” video shows what Antifa, extremist Muslim groups, and Canadian government officials have in common: The truth is hate speech - shut it down!
Islamist censorship (now playing out in the Michigan Governor’s race) is incompatible with the First Amendment, expert warns
“The ACLU is no longer a free speech organization.” Supports campaign finance restrictions, abortion clinic speech buffer zones, etc.
Public forum, state action, and adoption of foreign speech codes are theories to watch as law forms around speech issues on social media
1A Establishment of Religion: suit by New Jersey mom against Muslim proselytization by public schools survives motion to dismiss
2A: New Jersey Governor wants 2,400% tax increase on guns. Time to dust off the ‘undue burden’ arguments from abortion rights cases.
2A: gun rights group fighting New Jersey’s confiscation of 10-round magazines
2A: sorry, data from other countries does not support assertion that gun control laws reduce homicide rates
2A: UN up to its old tricks, pushing international gun control
Property Rights: activist gaining ground against UN-directed encroachment, e.g., received invitation to speak to state landlord’s group
5A Due Process: consenting to a separate trial negates double jeopardy claim, Supreme Court rules
5A: Dallas officials skirt eminent domain, rezone property and order shop owner to move without compensation. Case on appeal. City would prefer Starbucks which just closed 150 stores. Very far-sighted, Dallas! #RememberKelo
8A: multiple life sentences for D.C. sniper Lee Boyd Malvo must be reevaluated in light of later Supreme Court cases on sentencing juveniles
14A Equal Protection: federal district court panel strikes Virginia legislative districts for racial gerrymandering, orders redistricting plan
14A Equal Protection: availability of single-occupancy facilities overrides student objections to transgenders in bathrooms and locker rooms, federal appeals court rules
Equal Protection: affirmative action – which was supposed to be temporary – has outlived its usefulness. Sufficient classroom diversity could now be achieved solely with merit-based admissions.
Political bias in public accommodations is a growing problem, as Chicago bar bans MAGA hats .#RedHen
Deference: agency interpretation not entitled to deference when clearly against the federal statute, Supreme Court rules in deportation case
Appointments Clause: federal judge denies constitutional challenge to Robert Mueller appointment
Appointments Clause: Supreme Court holds that SEC administrative law judges should be appointed by someone with more authority than SEC staffers
State Constitutions: Arkansas may proceed with medical marijuana program, state Supreme Court rules; state’s process held to interfere with voter-approved constitutional amendment
State Constitutions: Massachusetts court keeps millionaire’s tax amendment off November ballot because it was the product of ‘logrolling’ – pairing unrelated popular proposals with unpopular proposals
Article V Convention: Left-wing PAC raising money to unseat anti-convention legislators. (Also, apparently, advocates are trying to sneak pro-convention planks into state GOP platforms, continuing pattern of sneakiness)
Progressive movement has perverted the Constitution, transferring power from republican self-government to an untouchable Supreme Court
Tonight I have two updates for you, on cases I previously discussed on this webinar.
The first concerns the constitutionality of the Consumer Financial Protection Bureau – the CFPB. A federal judge in New York has found that the CFPB “is unconstitutionally structured because it is an independent agency that exercises substantial executive power and is headed by a single Director.” An independent agency with a single director is something we have not seen before and the judge ruled this violates separation of powers [p. 103]
I had previously discussed a separate CFPB case in federal court in the District of Columbia. The D.C. Circuit Court of appeals upheld the constitutionality of the CFPB in January 2018. A third case is in the Fifth Circuit Court of Appeals. In all likelihood, this issue is headed to the Supreme Court for final resolution.
The other case I’ll discuss tonight is Carpenter v. United States, which involves the Fourth Amendment. The Supreme Court just ruled that police must have probable cause and get a warrant before they can obtain cell site location data from a phone company. Writing for the majority, Chief Justice Roberts stated that people have a legitimate expectation of privacy in their location information because it provides “an intimate window into a person’s life, revealing not only his particular movements, but through them his ‘familial, political, professional, religious, and sexual associations.’”
Four Justices wrote dissenting opinions. Of special interest is the one by Justice Gorsuch, champion of the property rights theory of the Fourth Amendment. He criticized the long-standing expectation of privacy test as an unreliable guide that leads to unpredictable results. Cell phone records are property, in his view. He compared cell phone location data to sealed letters put in the mail, property which arguably requires a warrant to search even when entrusted to a third party, the post office. Gorsuch and his property rights rationale failed to carry the day, however, so ‘legitimate expectation of privacy’ remains the primary theory of Fourth Amendment jurisprudence for now.
1A: Supreme Court OK’s political messages on clothing at polling places; case based on ‘Don’t Tread on Me’ T-shirt
10A, Executive Power: Trump admin asks Supreme Court to strike down 7th Circuit’s national injunction against enforcing new conditions on federal grant funding for sanctuary cities
14A: Supreme Court punts on partisan gerrymandering cases in Wisconsin and Maryland; still no standards to know when gerrymandering goes too far
14A: federal judge knocks down Kansas law requiring proof of citizenship to vote; appeal to be filed.
1A: U of Washington to pay College Republicans $127,000 to settle denial of free speech case.
8A: Supreme Court to hear Excessive Fines case
1A: federal judge nixes private enforcement of Colorado’s campaign finance laws; had become “tool for corruption and speech suppression”
1A: Missouri’s 30-day formation deadline for campaign committees is unconstitutionally overbroad, federal appeals court rules
1A: Supreme Court green lights citizen’s suit against city council for arresting him in retaliation for his opposition to a development plan, but sets high bar of proof
1A: white nationalist’s suit against Twitter for suspending account survives motion to dismiss; issue whether social media are ‘public forums’ will not be fully resolved any time soon
1A: it took 30 years, but Teamsters finally pay couple $3,000 in forced union dues case
1A Freedom of Religion: Florida Court of Appeals rules Catholic priest cannot be compelled to testify about what a penitent said in confession even though the penitent waives confidentiality
Freedom of Religion: “Canada’s Top Court Rules Christian College Can’t Promote Biblical View of Sexual Behavior on Campus” #FascistsToTheNorthOfUs
2A: Illinois Court guts ban on guns within 1,000 feet of schools, but more tailored bans may be possible
2A: Temporary injunction issued against Illinois town’s assault weapons ban that imposed $1,000/day fines on weapons not turned in; ban “puts the lie to claims by anti-gunners that ‘nobody is coming to take your guns.'"
2A: man arrested, charged with a dozen felonies after trying to comply with California’s complicated registration law redefining assault weapons
4A: police cannot rely on Google Translate to get consent to search from someone who doesn’t speak English, Kansas court rules
4A: coaxing a suspect out of his house does not relieve police of duty to get a warrant to search the house, per federal appeals court
8A Cruel and Unusual Punishment: state law defining intellectually disabled with obsolete IQ standard for purposes of the death penalty is unconstitutional, Kentucky Supreme Court rules
Penumbras and Emanations: Illinois county, after aspiring to become a gun rights sanctuary, might also become abortion-free sanctuary
Nullification: New York to cut arrests for smoking marijuana in public in half despite drug still being a federally controlled substance.
14A: the ugliness of affirmative action – Harvard is suppressing Asian-American admissions and NYC will destroy its best public schools that have produced Nobel prize winners
14A Due Process / Commerce Clause: North Carolina court holds income taxation of out-of-state trust unconstitutional
Amendments: Can there be ‘unconstitutional’ constitutional amendments? E.g., an amendment to overturn Citizens United even though it would offend free speech principles.
Magna Carta 800 years old – it may only have benefitted nobles and not have declared natural rights for all like the Declaration of Independence, but it still represents an important development in the history of liberty
A socialist wrote the Pledge of Allegiance to help immigrants become assimilated
Only you can prevent constitutional decay – “democratic self-government should not be taken for granted. Our experiment in liberal constitutionalism is just that — an experiment that can fail if not properly sustained.”
‘Juneteenth’ – slaves in Texas didn’t learn they were free until 2 months after the Civil War ended
“Hawaiian judge orders released US detainees back to N.Korea” (satire)
Kudos: President Trump hugs U.S. flag after speech. Can you imagine Barack Obama doing that? I can’t.
Shame! NY legislator whose ‘heroes are America’s enemies’ takes knee to protest resolution honoring Flag Day. You don’t have to cash that paycheck, you know.
Executive Overreach: Justice Department won’t contest Texas suit to end DACA; agrees DACA is unconstitutional and should be terminated
5A Due Process: federal judge greenlights challenge to Trump policy separating families at the border
10A Commandeering: U.S. can’t withhold grants from sanctuary city Philadelphia, federal judge rules
Article IV: “Radical plan to split California into three states earns spot on November ballot”
1A Free Exercise, Compelled Speech: artists (citing Masterpiece Cakeshop) to appeal Arizona ruling forcing them to convey messages about same-sex marriage against their conscience.
1A: federal appeals court knocks down North Carolina law that sought to bar whistleblowers and undercover journalists from publicizing wrongdoing at private entities (firms, nursing homes, etc.)
1A: Louisiana Governor signs campus free speech bill; sorry kids, no safe spaces here
1A: New York poised to criminalize cyber-bullying of minors, but proposal to curb “abuse” seen as vague and overbroad
1A: “Criminal Libel Laws Are Constitutional If They're Limited to Deliberate Lies”
1A Free Press: arrest of Senate Intelligence Committee leaker presages battles over press freedom, encryption ahead
Freedom of Expression: radical gay Left continues assaults on free speech by barraging Twitter CEO for eating at Chick-fil-A and CrossFit exec for tweeting Christian view of ‘pride’ during Gay Pride Month
2A: ‘gun sanctuary’ movement growing in Illinois to counter threatened gun control measures
5A Eminent Domain: Supreme Court considering case where landowner ensnared in Catch-22’s requiring ‘final’ regulatory and state court decisions before filing in federal court
5A Takings / 8A Excessive Fines: Michigan officials keep all the proceeds ($42,000) of a tax sale after foreclosure when tax bill was only $2,000. Court calls it “theft”.
6A Effective Counsel: rights not violated if lawyer is n-word racist; must show racism adversely affected lawyer’s performance.
6A Attorney-Client Privilege: prison records phone calls between inmates and lawyers, prosecutors listen to them. Convictions could be tossed out.
8A: Sex abuse by prison guard constitutes cruel and unusual punishment, federal appeals court rules
9A: “Climate Constitution” push shows the danger of unmooring the Ninth Amendment from its natural law roots. Good luck with getting a “stable climate”; no such thing and declaring it a right won’t help you. #PieInTheSky
Economic Freedom: appeal to be filed after Pennsylvania court rules only licensed real estate professionals can manage Airbnb properties
Contract Clause: states cannot impair obligation of contract but Supreme Court OK’s wiping out spouse beneficiary in life insurance policy after divorce (only Gorsuch dissents)
State Constitutions: Maine Governor appeals court order to start Medicaid expansion, argues implementation without legislative appropriation for the cost violates separation of powers
State Constitutions: Voter ID fight continues in North Carolina as Republicans to seek amendment to state constitution
State Constitutions: major rethink of Chevron deference continues as Mississippi Supreme Court abandons deference to agency interpretation of statutes
Amendments: activists seeking constitutional amendment to overturn Citizens United decision protecting corporate political spending (will that go for unions too, hmm?)
Textualism – the only legitimate school of constitutional interpretation – helps the judiciary fulfill its proper role as the watchdog of liberty. (Clint Bolick)
Socialist magazine argues for a ‘constituent assembly’ with “unbounded” authority to rewrite the Constitution and “impose” its will on the country. Sure, that’ll help. Liberté, Egalité, Fraternité!
1788: opponent changes mind with promised addition of Bill of Rights, helps ratify U.S. Constitution in Massachusetts
Kudos to Korean War vet for winning fight to get his town to fly the U.S. flag again. (p. 5)
Shame! California college drops national anthem from graduation ceremony. (Trump will not defend school against foreign invasion... just kidding!)
It’s been less than a week since the Supreme Court rendered the Masterpiece Cakeshop decision, but it already seems like eons.
Most of the commentary on the case has focused on how narrow the decision is. The Supreme Court put off the big questions about vendor involvement in same-sex weddings – for example, whether forcing unwilling vendors to provide services to same-sex weddings is compelled speech in violation of the First Amendment. Instead, to everyone’s surprise, the Court picked up on one aspect of the case before it and limited its ruling in favor of baker Jack Phillips to instances where the vendor can show that the government deliberately targeted religion in applying its nondiscrimination law. The Court left for another day the question whether the same result should obtain in the ordinary case where the government does not show open hostility to religion.
What’s generally been overlooked is what the case does do for people of faith and how they can use the Masterpiece decision to their full advantage. Religious people have been given an argument they didn’t have stated so clearly a week ago – that the government’s action is a thinly veiled attack on religion in a country founded on freedom of religion.
Before turning to how to use this argument, let’s look at the constitutional basis for the Court’s decision in Masterpiece in more detail. Writing for the majority, Justice Anthony Kennedy concluded that “the Commission’s treatment of Phillips’ case violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint.” The Court held that, in so doing, the actions of the Colorado Civil Rights Commission violated the Free Exercise Clause of the First Amendment. That clause prohibits Congress from preventing the free exercise of religion. It has been applied to the states through the Due Process Clause of the 14th Amendment through what is called the incorporation doctrine.
Civil rights laws must be applied in a manner that is neutral towards religion, the majority opinion said, but the record here showed that the Commission was neither tolerant nor respectful of Phillips’ religious beliefs. Some of the commissioners stated their view that there is no room for religion in the public sphere and, further that Phillips’ faith was “despicable”. They compared his ordinary religious views to defending slavery or the Holocaust.
Now, how can religious people use the Masterpiece decision against the radical gay Left and groups like the Freedom from Religion Foundation who are crusading against religion?
If I were the attorney representing religious clients, I would assess whether the case fits squarely into the Masterpiece Cakeshop envelope – that is, whether the facts show that the law under which the opponents are proceeding is a frontal assault on religion or that the people administering the law are hostile to religion. I would force them to spend time exploring the facts in the case and defending against the proposition they are anti-religious. I would pin down the government officials in deposition and at trial regarding their attitudes toward religion. Put their hostility to religion, if it exists, on the record.
If the case doesn’t fit squarely within Masterpiece, I would argue for as broad a reading of Masterpiece as I possibly could. Suppose you find some facts that indicate hostility to religion on the part of government officials, but those facts aren’t as brazen as in Masterpiece. Then you can argue in good faith for an extension of Masterpiece, even if your facts don’t rise to the level of what happened to Jack Phillips.
Even if your facts fall short, at the very least you will have discredited your opponents, which Cicero – the all-time master of argumentation – advises you always do at the outset of every argument. Discrediting your opponents may tip the balance in your case in your favor in some intangible way.
Finally, this is the first time I can recall that that radical gay Leftists have been told there are limits, and they aren’t always going to get what they want. I’m talking about the ones who want homosexuality taught in kindergarten and who have not been interested in any compromise whatsoever up to this point. Law is the adjustment of competing interests. Other people have interests, too, and, sometimes, those interests are going to win out. As I used to tell my clients: Litigation? Anything can happen. I lost cases I should have won and won cases I should have lost. That’s what happens when you let a court decide your dispute. You lose control. So another use of Masterpiece is to instill doubt in your opponents, and get them to reach some accommodation with you – to settle the case, in other words.
I’ll close with this: The Court in Masterpiece has handed people of faith an argument to make. It’s up to them to fight for as much space under that argument as they can, so that it is applied as broadly as possible. Who knows – some attorney somewhere, representing religious clients, might even come up with a masterpiece of argumentation that helps stem the anti-religious tide sweeping over the nation.
More Constitution News at Liberato.US
1A Religion: Supreme Court rules baker need not work for same-sex wedding when the government deliberately targets religion in passing ordinance; broader questions left undecided
5A Due Process: Trump signs federal Right to Try legislation giving patients access to experimental drugs
5A: Supreme Court ducks case to force U.S. to provide abortions to illegal immigrant minors, calling it moot (abortion already performed). Strange argument: failure to provide abortion is ‘undue burden’ on abortion rights.
1A, Separation of Powers: union sues over Trump order limiting the time federal workers can spend on union business when they’re supposed to be working
14A Equal Protection: Sailor jailed for taking classified submarine photos sues Obama and Comey for selective prosecution (low likelihood of success)
14A Equal Protection: Virginia school district appeals ruling allowing transgender student to proceed with challenge to bathroom policy
1A: free speech issue not reached in same-sex cake case; two Justices found compelled speech but two did not
1A: Bradley Manning loses appeal; can’t invoke free speech as shield for giving national defense info to Wikileaks
1A: wrongly-named Liberty High School in Oregon wrongfully barred student from wearing Trump border wall t-shirt, federal judge rules
4A: Delaware Supreme Court rules the Fourth Amendment does not bar the use of incriminating evidence revealed to an undercover officer friended on Facebook
4A: if qualified immunity blocks suits against officers, how else to punish violations of the Fourth Amendment without excluding evidence from trial?
5A Double Jeopardy: NY Attorney General seeks state law to jail those like Dinesh D’Souza pardoned of federal crimes
5A Self-Incrimination: intellectually-challenged 16-year-old murderer (susceptible to suggestion and subject of Netflix show) argues confession not voluntary after police gave him ‘right’ answers to say during interrogation
5A right against self-incrimination trumps state civil forfeiture law, Iowa Supreme Court rules. Unconstitutional to require individuals challenging forfeiture to disclose how they acquired the property.
14A Equal Protection: “Latino, Asian-American Groups Sue Over Citizenship Question”
14A Equal Protection: Michigan judge loses challenge to forced retirement age; state doesn’t explain it but the policy can’t be said to be irrational.
Chevron: Wisconsin Supreme Court may lead the way in changing approach to courts deferring to agencies –“ three levels of deference: great weight deference, due weight deference or no deference”
Amendments: Equal Rights Amendment only needs one more state for ratification, but get ready for fight about deadline expiring; seen as overturning all anti-abortion laws
Amendments: article summarizes arguments, pro and con, for ratifying Equal Rights Amendment after long delay
Treaties: Supreme Court takes case that could give half of Oklahoma to Muscogee Indians
Mark Levin: Progressivism concentrates power and is thus incompatible with the U.S. Constitution
Woodrow Wilson hated the Constitution because he believed in technocrats and experts, not democracy or We the People
4A: it’s the 90th anniversary of Olmstead case allowing warrantless wiretapping (overturned in 1967 Katz case)
Constitution’s citizenship for ‘Indians not taxed’ became full birthright citizenship for all Indians in 1924 law; full voting rights delayed until 1965
Ready for Your Quiz? Beach incident with underage drinker raises host of issues: do you have to give the cops your name? Submit to a breathalyzer? Can cops turn their body cams off? Etc.
Shame! Eric Holder urges Justice Department employees to defy Trump in Spygate to ‘protect the institution’, - where is that in the Constitution?
1A: political correctness and attacks on free speech indicate budding tyranny, with thought control the endpoint
Secret court in U.S. jails activist for publishing the truth, gags media, orders outlets to delete articles. Then I woke up. (Thank heaven for the U.S. Constitution. This is why we fight for it.)
Tonight, I discuss the presidential pardon power, including the question whether or not sitting Presidents can pardon themselves. But, first, an update:
Last time, I discussed whether the appointment of Robert Mueller as special counsel was constitutional under the Appointments clause. Mark Levin spent three nights on the question, arguing strongly that Mueller’s appointment was unconstitutional because Mueller was given wide powers to investigate. This makes him like a U.S. Attorney, a principal officer who must be confirmed by the Senate. Mark Levin discussed this on May 21st, 22nd, and 23rd, and you can find the shows on the Audio Rewind page at MarkLevinShow.com.
Going on now to the pardon power, it is found in Article II, Section 2 of the U.S. Constitution. It is recognized to be a broad power with few limitations. [Chemerinsky, Constitutional Law: Principles and Policies, 4th Ed., p. 371] The Supreme Court in an 1866 case [Ex parte Garland, 71 U.S. (4 Wall.) 333,380] said the power extends to every offense known to federal law and may be exercised at any time – before criminal proceedings begin, while they are pending, or after conviction.
The major limitation specified in the Constitution is that the President may not issue a pardon in cases of impeachment. So Gerald Ford pardoned Richard Nixon for any and all crimes that Nixon may or may not have committed in a 5-year period ending in 1974. Articles of impeachment were voted out of the House Judiciary Committee, but that’s as far as they got. So Nixon had not yet been impeached, and the fact that the pardon came before criminal proceedings began was likewise not a problem. However, there was a third issue in Nixon’s case. The Supreme Court has never ruled on the validity of open pardons – for any and all potential crimes - and some question their constitutionality. [here at ftn. 7]
There are some other limitations on the pardon power. The President can’t pardon someone for state crimes, or for civil liability. So, in a 1925 case, the President pardoned someone for criminal contempt of court but would not have been able to do so if it had been civil contempt of court. [Ex parte Grossman, 267 U.S. 87, 121-122] Also, the President cannot award any compensation from the U.S. Treasury to anyone granted a pardon. [Chemerinsky, p.374]
Pardons can take the form of complete exoneration – as if the crime had never been committed – or a reduced sentence. In a 1927 case, the Supreme Court upheld the President’s power to reduce a death sentence to life imprisonment. [Biddle v. Perovich, 274 U.S. 480]. In 1974, the Supreme Court approved the President’s commutation of a death sentence on the condition that the person never be eligible for parole, even though the statute did not provide for a sentence of life without parole. Any reduction in sentence is within the President’s power, the Court said. [Schick v. Reed, 419 U.S. 256].
Can the President pardon an entire group of people? The answer is yes and it has happened at least twice. Jimmy Carter used the pardon power to grant amnesty to Vietnam War draft dodgers in 1977. [Chemerinsky at 373] In 1868, President Andrew Johnson granted amnesty from prosecution for treason and all other crimes committed while fighting in the Civil War. [id.]
Could a President pardon everyone in federal prison – just open the doors and let everybody out? Theoretically, the answer is yes, although the practice has developed over the years of following the recommendations of the Office of the Pardon Attorney at the Justice Department. Conventional practice is to let that Office screen the applications, require anyone requesting a pardon to wait five years after conviction or release and demonstrate the ability to live a responsible and productive life. But Trump did not follow convention in Dinesh D’Souza’s case this week – D’Souza didn’t ask for a pardon, Trump just did it. Some have observed that Trump is drawn to cases where the prosecution was politically motivated, Sheriff Joe Arpaio being another case in point. Pardons can be refused, by the way. George Wilson was sentenced to death for robbing the U.S. mail, but chose to hang rather than accept a presidential pardon in 1833. The Supreme Court said he was within his rights to do so. [United States v. Wilson: 32 U.S. 150 (1833)]
Rudy Giuliani said this week that, theoretically, President Trump has the power to pardon himself. That’s disputed, of course. The question came up in the Nixon era and again in 1998 when Bill Clinton was impeached. A 1974 Justice Department memo took the position that Presidents can’t pardon themselves directly, but could do so indirectly under the Twenty-Fifth Amendment. Presidents could declare themselves temporarily unable to perform the duties of the office, the Vice President as Acting President could pardon the President, then the President could resume office. Some observers said this week that impeachment would await any President that tried to exonerate themselves through the pardon power.