14A Equal Protection: federal judge in Texas rules all-male military draft unconstitutional (declaratory judgment only; no court order). #WelcomeToEquality
14A Equal Protection: Trump may issue executive order prohibiting government use of flawed and overreaching ‘disparate impact’ theory which dispenses with need to prove discriminatory intent in race cases.
5A Fundamental Rights: Climate Kids submit brief to 9th Circuit in interlocutory appeal of whether ‘riight to a sustainable environment’ case should proceed to trial
5A Fundamental Rights: federal judge in Philadelphia dismisses claim there is a constitutional rights to a “life-sustaining climate system”, expressly disagreeing with Oregon judge who affirmed such a right in Climate Kids case
1A: Supreme Court turns away workplace ‘Fight for 15’ buttons dispute; how broadly to read Janus will have to wait for another day
1A: Supreme Court hears case testing whether public access television is subject to free speech rules
1A: ”Defendant Has No First Amendment Right to Wear "Black Lives Matter" T-Shirt at Trial”
1A: Washington statute that criminalized cyberstalking - "anonymous or repeated" speech intended "to harass, ... torment, or embarrass" is unconstitutional because it outlaws protected speech (federal judge, Washington state)
1A: Mississippi engineer licensing board’s attempt to stop tire shop business from using the name ‘Tire Engineers’ violates commercial free speech rights (5th Circuit)
Free Expression - London police arrest street preacher, take his Bible
1A Free Press: 12-year-old reporter schools Arizona police officer on the First Amendment - yes you can record their faces and put them on the Internet
Gun Rights: “Venezuelans Now Regret Giving Up Their Guns to Socialist Chavez Regime”
6A: California judge rules undercover baby parts videos will be public during the trial
8A: Supreme Court sends death row case back to Alabama; condemned prisoners must understand what they are being executed for; this one had strokes and says he can’t remember his crimes
Commerce Clause: 40 projects on hold awaiting outcome of suit arguing Pennsylvania Turnpike tolls should only be used to maintain the Turnpike, not fund other transportation projects.
Amendments: Equal Rights Amendment goes down to defeat in Virginia
Judicial nomination points up schism on the right - some conservatives questioning appointment of libertarian Neomi Rao who appears to be pro-abortion, pro-gay marriage, pro-open borders and a fan of making up new fundamental rights.
Presidential contender Kamala Harris was born in California to two noncitizen parents - natural born citizen?
Tea Partiers have long been concerned about civil asset forfeiture, the practice of police departments seizing assets from, say, drug dealers, and selling them off. Nobody likes drug dealers, so what could go wrong?
Enough for a unanimous Supreme Court to rule this last week there are constitutional limits to civil asset forfeiture. A drug dealer in Indiana pled guilty, then the state moved for forfeiture of the man’s $42,000 Land Rover SUV the police had seized earlier. The man bought the SUV, not with drug money, but with the proceeds of a life insurance policy on his father who had passed away. The trial court observed $42,000 was four times the maximum allowable fine for the offense and denied the state’s request. The Indiana Supreme Court reversed, sending the case to the U.S. Supreme Court.
Justice Ruth Bader Ginsburg wrote the Court’s opinion. The issue was whether the prohibition against excessive fines in the Eighth Amendment of the U.S. Constitution applies to the states through what is called the incorporation doctrine. Most, but not all, federal rights have been incorporated and bar the states, not just the federal government, from infringing on those rights.
Justice Ginsburg wrote rights are not to be incorporated unless they are “fundamental to our scheme of ordered liberty,” or “deeply rooted in this Nation’s history and tradition.” Ginsburg found the principle of proportionality - that economic sanctions should be proportional to the offense - went all the way back to the Magna Carta. Proportionality also appeared many times after that, in the English Bill of Rights, laws of the American colonies, and three dozen state constitutions. She also noted excessive fines were used to keep slaves who had been freed from bondage in a state of perpetual involuntary labor. All of this was more than enough, in the Court’s view, to apply the Eighth Amendment’s prohibition against excessive fines to the states through the Due Process clause of the 14th Amendment.
Justice Thomas and Justice Gorsuch concurred in the result, but wrote separately to suggest that the proper route to the result is through the Privileges & Immunities clause, not the Due Process clause. There is quite a debate going on in conservative legal circles about the meaning of the Privileges & Immunities clause, but that’s a subject for another day.
For now, the Court’s decision curbs the abuses of civil asset forfeiture and reins in what critics have called ‘policing for profit’. Some cities were getting as much as 30 percent of their budget from the practice. Talk about gangster government, wow! Justice has been served because the financial conflict of interest has, to a large extent, been removed. Justice Ginsburg noted another abuse in her opinion - large fines can be used to chill free speech or retaliate against political enemies. The potential for that abuse in the states is much less after the Court’s decision.
However, I should note that fans of state sovereignty will not like the reasoning in this case. To the extent state sovereignty ever really existed, the incorporation doctrine is another nail in its coffin. Civil asset forfeiture, like so many other areas of the law, has now been federalized - Washington has spoken. Before this case, states were free to impose excessive fines, but not anymore. Under our system, the federal government is supposed to have limited powers and the states are supposed to have powers of their own. Tea Partiers like federalism for this reason, but our challenge is to find constructive ways to revitalize state power as a check on a central government that has been growing increasingly more powerful and less accountable over time. The result in the asset forfeiture case last week may have been correct, but the case didn’t make the task of revitalizing federalism any easier for us.
Webinar: Conscience as the Most Sacred Form of Property. Explore Madison’s thought that natural rights are our property, with Gary Porter the evening of March 11th. $10 - register here -
8A: Supreme Court unanimously rules state and local governments may not impose excessive fines, which will sharply curtail their use of abusive civil asset forfeitures
8A: Ending Civil Asset Forfeiture Abuse in Tennessee (new article by Knoxville Tea Party)
8A: Supreme Court finds Texas man intellectually disabled, blocks his execution
14A: city ordinance barring female toplessness discriminates against women, 10th Circuit panel rules. Women’s breasts are not erotic, that’s just a stereotype, opinion says. Glad we got that straightened out.
Separation of Powers: 16 states file suit against the President’s national emergency declaration, arguing Congress did not appropriate for the wall the money Trump is repurposing
Census: Supreme Court to rule quickly on whether citizenship question can be put on census form. (Article I, Section 2, Clause 3)
Appointments Clause: appointments to the Puerto Rico bankruptcy board held unconstitutional; board members deemed ‘officers of the U.S.’ but not confirmed by the Senate
1A: 14 of 15 criminal charges against Center for Medical Progress journalist dismissed in connection with undercover baby parts sting videos involving Planned Parenthood
1A: 7th Circuit panel upholds Chicago ‘bubble zone’ ordinance prohibiting ‘sidewalk counseling’ near abortion clinics, but relies on discredited Supreme Court precedent
2A: study finds that comprehensive background checks for gun sales did not reduce homicide or suicide rates in a 10-year period in California.
2A: New York bill would require examination of years of your Internet activity before you could buy a gun
4A: police officer touching a tire is a search under property rights (trespass) theory of the Fourth Amendment (5th Circuit)
4A: it is NOT reasonable for officers to assume that a woman who answers the door in a bathrobe has authority to consent to a search of a male suspect's residence (7th Circuit)
5A: many eminent domain headaches await Trump’s border wall
13A: New Hampshire bill would impose Medicaid quota on doctors
14A: Supreme Court case to test contours of idea lawyers can’t use peremptory challenges to exclude jurors for racial reasons
14A: Washington State “misleading voter initiative seeks to repeal I-200, which banned state-sponsored discrimination or preferential treatment based on race, sex, etc.”
21A: “residency requirements for retail liquor licenses in Tennessee has raised an array of legal and constitutional questions”
Article V Convention: Arkansas becomes the 13th of 34 states needed to approve constitutional convention
Libel: Justice Thomas wants Court to reexamine New York Times v. Sullivan defamation precedent and possibly make it easier for public figures to sue media outlets for fake news
Judicial supremacy is inconsistent with popular sovereignty, i.e. the rightful authority of a self-governing people
February 15, 1879 - the day women were first permitted to argue before the Supreme Court
Kudos! 6- and 8-year-old boys stop, place their hand over their heart, and recite the Pledge of Allegiance as flag raised at their North Carolina town’s firehouse
1A Religion: Christian student group wins in court, can choose own leaders
1A: federal judge upholds Arkansas anti-BDS law forbidding state agencies from dealing with companies that boycott Israel (other courts have gone the other way)
5A Fundamental Rights: failure of South Dakota bill affirming parental rights to resist the transitioning of their gender-confused kids should terrify parents
Amendment to affirm a constitutional right for parents to “direct the upbringing, education, and care of their children” introduced in the House
14A Due Process: Supreme Court declines to stay execution of Muslim inmate in Alabama who had sued to have imam present in death chamber.
1A: forcing students to fill in world history course worksheet with ‘no god but Allah’ does not establish a religion or compel speech (4th Circuit) #CreepingSharia
Free Expression: Islam very successful in suppressing criticism of its treatment of women; feminists overlook “child marriages, forced marriages, female seclusion, honor killings, gang rapes of infidel women, or the enslavement and sale of females for sex slavery.” Not to mention FGM.
Free Expression: English woman arrested for ‘misgendering’ trans activist on Twitter
Free Expression: tech giants that punish social media users for ‘misgendering’ are killing freedom of expression
1A Right of Association: Women suing for sexual harassment at Yale fraternities seek to have them opened to women. #ABridgeTooFar
1A Right of Association: the section of the Delaware Constitution requiring judges to be Republican or Democrat is unconstitutional
1A: gun groups file suit against New Jersey for law criminalizing the sharing of gun blueprints online
2A: map shows many more states now allowing concealed carry than in 1986
2A: Washington State sheriff refuses to enforce state’s restrictions on ‘assault rifles’
5A Due Process: new lawsuit claims holding immigration court by videoconference limits access to justice and is a pretext for speeding deportations https://www.nytimes.com/2019/02/12/nyregion/immigration-court-video-teleconferencing.html
14A Equal Protection: trade association objects to Pennsylvania bill that would tax adult video games an extra 10%
Electoral College: Dems pushing National Popular Vote Compact in their ‘trifecta’ states
State Constitutions: rational basis test for substantive due process and equal protection claims under state constitutions tougher than in Supreme Court ‘anything goes’ jurisprudence
Judicial ‘minimalism’ explained - courts should avoid broad sweeping declarations and decide cases on the narrowest ground possible
Whatever notions you have about traffic camera speed traps being unconstitutional, forget it says Iowa Supreme Court
“George Washington Letter on God and the Constitution Revealed”
I have three items for you tonight - the green new deal, an abortion ruling, and a case about discrimination against Israel.
First, a green new deal resolution was introduced in the House this past week with 67 co-sponsors. I couldn’t find any articles analyzing the constitutionality of the resolution, which troubles me. Here you have an outlandish proposal and nobody is even asking whether it’s constitutional. When I looked over the resolution myself, I found a lot of familiar ingredients, and nothing jumped out at me as being unconstitutional, when the resolution is taken at face value. The ingredients have long been considered constitutional, things like regulating agriculture and the environment; government spending on infrastructure and public transit; and upgrading buildings. The promise to get rid of planes was widely ridiculed, but it’s from an earlier draft that talked about having so much public transit and hi-speed rail that jet travel would no longer be necessary, not taking planes by eminent domain under the 5th Amendment to the U.S. Constitution. The resolution talks about moving to 100 percent renewable energy, but government policy has long favored some forms of energy over others. The proposal is short on specifics, but it does not say that fossil fuels must be left in the ground, which would raise regulatory taking issues under the 5th Amendment. Even if regulatory taking issues come up in the implementation of the resolution, those cases are tough to make. What about guaranteeing everyone a job, whether they want to work or not? It might not be good policy, but we’ve had social programs in this country for a long time. No, the biggest constitutional objection to the green new deal I can see at present is the spirit of the thing. The massive “10-year national mobilization” would turn everything upside down and interfere with everyone’s lives. The government is not supposed to be that intrusive. It sounds more like North Korea, where people are mobilized to pick berries and nuts for Dear Leader, than America to me. We’re supposed to have limited government in this country, not massive government overreach, or mass mobilizations in peacetime whenever politicians say jump.
Second item: There was a lot of commentary this past week about Chief Justice Roberts going over to the dark side and joining the four liberals on the Supreme Court in temporarily blocking abortion restrictions from taking effect in Louisiana. The Tea Party and thus my commentaries usually stay away from social issues, but Roberts’ decision is instructive in understanding how the Supreme Court works in general. Roberts is, first and foremost, an institutionalist. He can be expected to act in what he considers to be the best interests of the Supreme Court as an institution. The Supreme Court is always reluctant to overturn precedent, and is even more reluctant to do so when the case is at an intermediate stage. The posture of the abortion case this past week was not a final ruling; it was a request for an injunction while the case proceeds below. Roberts was not going to get into whether or not to overturn Roe v. Wade or other aspects of abortion jurisprudence on an interim procedural matter. What he will do when another abortion case is finally and squarely presented is still anybody’s guess.
Finally, keep your eye on BDS. There’s a First Amendment issue that may end up in the Supreme Court. BDS is the Boycott, Divestment and Sanctions movement against Israel. This past week, a federal judge upheld an Arkansas law forbidding state agencies from dealing with companies that boycott Israel. The ACLU had argued on behalf of a newspaper that the law violates free speech, citing precedents from civil rights boycotts. The newspaper had refused to sign a pledge never to boycott Israel as demanded by a state college that was an advertiser in the paper. The court ruled that a business boycott is commercial conduct and not a speech issue at all, citing Supreme Court precedents. But courts in Kansas and Arizona have gone the other way and the issue is currently before the 9th Circuit Court of Appeals. I expect one or more of the anti-BDS cases to eventually make its way to the Supreme Court.
1A: San Francisco ordinance requiring health warnings on soda labels struck down as compelled speech (9th Circuit)
Free Expression: Council of Europe says sharia law is incompatible with freedom of expression, freedom of religion, democracy, etc.
1A Religion: University of Iowa puts 32 religious student groups on probation for supposed discrimination in ongoing tussle over whether Christian groups can be forced to have gay leaders against their beliefs
2A: South Dakota becomes 14th state to enact constitutional carry (no permit required to carry a firearm)
2A: Dems say they need “a new massacre” to succeed on the gun control issue
4A: a police threat to break down door if it’s not opened is not a coercive warrantless entry, Fourth Circuit rules
5A: Rep. Rashida Tlaib (D-Mich.) proposes seizing closed industrial plants to implement Green New Deal
Discrimination: more political bias in public accommodations - California restaurant won’t serve customers wearing MAGA hats. Brandon Straka: so order your food and put on your hat when the food is being made
14A Due Process: appeals court says pistol-whipping is not a ‘crime of violence’ under Supreme Court precedent, over dissent that vagueness should be assessed in light of the facts of the case, not just statutory language (4th Circuit)
Art 1, Sec 9 Habeas Corpus: ordinarily time-barred claim can go forward because actual innocence test met (massive defects in the evidence - witness with memory problems, suggestive lineup, bad forensics, etc.) (4th Circuit)
Nationwide Injunctions - more commentary coming in against lower federal courts issuing nationwide injunctions. There have been 30 against the Trump administration, “matching the total number of injunctions against the first 42 presidents combined”
Why the Articles of Confederation failed - weak central government, supermajority required for everything in the legislature, states had their own foreign policies, etc.
“John Marshall: The Man Who Made the Supreme Court” (one hour video on early Chief Justice who favored a big federal government)
California’s out-of-control referendum process teaches other states why they should avoid ‘direct democracy’
Shame on Don Lemon! He tried to browbeat Gladys Knight into not singing the National Anthem at the Super Bowl. Her reply: “It’s about respect... there are so many that have died for our great country even in my family”