1A: Public access cable TV is not the government and free speech rules don’t apply, Supreme Court decides (implications for social media)
4A: ICE can’t use a search warrant for employment records as a pretext to round up 130 illegal aliens in a workplace raid (9th Circuit)
1A Establishment: Atheist group drops suit challenging tax exemption for clergy housing; exemption is not sponsorship or active involvement of government in religion
5A Double Jeopardy: Supreme Court lets stand lower court ruling allowing federal and state prosecutions for the same conduct; implications for Trump pardons
4A: Carpenter won his case at the Supreme Court last year, but warrantless search of his cellphone location data was in good faith, so he stays in prison (6th Circuit)
1A: Cleveland to pay $225K to man arrested for burning U.S. flag.
1A: President Trump supports constitutional amendment prohibiting burning U.S. flag
1A: Texas becomes 17th state to enact campus free speech legislation
1A: Vermont ‘revenge porn’ statute facially constitutional, but posters not in romantic relationship with the person affected escape the statute’s reach (Vermont Supreme Court)
Free Expression: French government brings criminal charges against political leader Marine Le Pen for posting truthful pictures of ISIS atrocities
2A: Guns used far more often in self-defense than in crime
2A: Virginia Beach killing ground was a gun-free zone (duh!)
4A,14A: Michigan’s practice of storing blood samples from every newborn may violate children’s 4th Amendment rights and parents’ 14th Amendment right to direct their children’s medical care
8A: report finds civil asset forfeiture does not help police solve more crimes as claimed; forfeitures spike up when local economies are depressed
8A: serving prisoners only two meals a day is constitutional as long as calorie count is maintained (7th Circuit)
14A: building inspector so biased against Asians he issues them violations while off duty; probable equal protection violation (2nd Circuit)
14A: Michigan AG says question of state agencies puffing up sex discrimination to include sexual orientation and transgenderism is before Supreme Court, so she doesn’t have to follow previous AG’s opinion that the puffing up in her state was invalid. Huh?
Commerce Clause: homophobic assault at Amazon facility affects interstate commerce ‘in the aggregate’, justifying federal Hate Crimes Act prosecution, so says 4th Circuit panel
“Constitutional Text and State Sovereign Immunity”
Shame! U.S. women’s national soccer team star won’t ever sing the national anthem or put her hand over her heart again because U.S. is so horrible bad unjust and unequal. You’re benefitting from representing the U.S., lady. Why don’t you have the courage of your convictions and get off the team, huh?
1A: Supreme Court turns away atheist group challenge to ‘In God We Trust” on U.S. currency
1A: Alabama bans free speech zones on public college campuses, stops use of ruinous fees for disfavored speakers
Civil Rights: Supreme Court to decide whether Comcast’s refusal to carry black-owned network was discrimination or ordinary business decision
Electoral College: “Oregon Joins National Popular Vote Compact”
1A: Washington Supreme Court requires florist to serve same-sex wedding, rejects compelled speech and religious animus arguments.
1A: disciplining officers for leaking word after cover-up of meth in mayor’s son’s backpack is probably unconstitutional retaliation
2A: “Washington Gun Owners Face Orwellian Dystopia With Implementation Of I-1639”
2A: Supreme Court turns away challenge to federal law requiring registration of silencers; lower court held silencer is an accessory not protected by the Second Amendment
4A: an initial warrantless search turned up drugs which were then used to apply for a warrant for a second search, upheld because plenty of other evidence supported the warrant application (7th Circuit)
4A: tip that black man was carrying a gun does not justify a police stop; carrying a gun is presumptively lawful (9th Circuit)
6A: California appellate court ducks question whether Muslim garb covering witness’ face violates right of confrontation; decides on facts presented allowing witness to testify partially covered was harmless error
Separation of Powers: Supreme Court will decide whether to take the case of ‘Frankenstein’ D.C.-area airports authority which is “neither accountable to the federal government nor the states that created it”
Copyrights: Supreme Court takes up whether federal cancellation of state immunity for copyright infringement is constitutional
“Former Antifa Activist Now Fights for Free Speech on College Campus”
Sharia and the Constitution series from the United West, Pts 1 and 2
Shame! D.C. gay pride parade bans American flags
Some government officials still haven’t gotten the message from the revolt that followed the Supreme Court’s overreaching Kelo eminent domain decision. Kelo, you may recall, puffed up eminent domain to allow governments to take private property for public benefit and economic development, not just for public use like a road. So, in New London, Connecticut, private homes were taken and transferred to another private owner for a medical research lab that was never built, all for the sake of economic development. After Kelo, 45 states enacted some kind of reform measure to rein in the use of eminent domain for economic purposes.
Rapacious Baltimore didn’t get the memo, however. In March, it filed a lawsuit to condemn the Preakness Triple Crown horse race - not just the Pimlico race track where the race is run, but the horse race itself.
Now comes the federal government which wants to get away without paying a dime for an airport terminal in Texas that was built and maintained with private investor funds and a lower court said was worth more than $133 million. The facts in the Love Terminal case [Love Terminal Partners v. United States] are convoluted, but the important point for present purposes is that the government says the terminal, now destroyed, was worthless because it had no tenants and was not earning a positive cash flow. Therefore, the government says - and the appeals court in this case agreed - no just compensation for the exercise of eminent domain is due.
However, by that logic, if the government decides to take any church or synagogue in the land - or any idle farm in the country waiting for a new owner to come work it - the government can get away with seizing the property and refusing to pay just compensation when these things clearly have value. Places of worship may not ever turn a profit, but they clearly have monetary value. Commercial assets may not be making a profit at the time the government decides to seize them, but they still have value. Doesn’t getting them for free sound too good to be true? More importantly, wouldn’t that be exactly the wrong signal to send to what is supposed to be limited government whose job it is to protect our rights, not line its own pockets at our expense?
There was a perfectly good doctrine in eminent domain law in use for decades - a property is worth what a willing buyer would pay in cash to a willing seller for it. There is no good reason I can see to replace it with a new doctrine that essentially says ‘we can take your property for free if it’s not earning anything at the moment, even if we’re the ones who caused your revenue to dry up.’
The Supreme Court has not yet decided whether to take the case, but it should. There’s a lot at stake here.
Kamala Harris made news this past week by proposing that state laws restricting abortions be subject to preclearance by the U.S. Justice Department. The proposal is modeled after the preclearance provisions of the Voting Rights Act of 1965 which forced state and counties with a history of discrimination to get preclearance from the federal government to make changes in their election procedures. The Feds blocked 86 measures in several states under voting rights preclearance. Preclearance for abortion restrictions could have just as big an impact - abortion restrictions have been enacted in ten states so far this year.
In 2013, the Supreme Court knocked down part of the voting rights preclearance scheme. The Court found that the formula used to determine whether states were still discriminating against minority voters were out of date and the Justice Department was acting like nothing had changed in the last 50 years when it clearly had. As applied, preclearance had become unconstitutional, violating the Tenth Amendment. [Shelby County v. Holder, 2013] “The Tenth Amendment reserves to the States all powers not specifically granted to the Federal Government, including ‘the power to regulate elections.’” Id. The Court found that the federal government could not disrupt the “equal sovereignty” of the states - that is, treat them differently from each other - on the basis of out-of-date information. [more here]
But here’s the rub: the Supreme Court did not say preclearance itself is unconstitutional or against the Tenth Amendment. Instead, it said Congress can mandate preclearance under “exceptional conditions”. Literacy tests and poll taxes were the “exceptional conditions” justifying preclearance in the voting rights context.
The analysis in the abortion context is different, and is of no comfort to friends of limited government. States have the power to regulate elections, but the Supreme Court declared a federal fundamental right to abortion in the Roe v. Wade case. The Court federalized the abortion issue and didn’t leave much in the way of state power on the issue. States can try, even citing health and safety concerns, but state restrictions on abortion can get knocked down if they are deemed an “undue burden” on the federal fundamental right to abortion. This has been the basic set-up since the Planned Parenthood v. Casey decision in 1992.
We may not like it but, because of the way constitutional law has gone in this country, a President Kamala Harris would have at least as strong a case in asking Congress to enact preclearance in the abortion context as there was in the voting rights context. She can cite all the recent attempts to restrict abortions, claim that the heartbeat and other types of bills are “undue burdens” on the right to abortions, and say to Congress “exceptional conditions” exist to justify preclearance and require affected states to come begging to Washington before their legislatures can even take up any abortion bills at all. She’s not crazy, and that’s a problem for friends of the Tenth Amendment and limited government.
Discrimination: Supreme Court ducked transgender bathroom case but issue isn’t going away; Justice Ginsburg in VMI case and WaPo op-ed wrote in favor of individual privacy.
Electoral College: Nevada Governor vetoes national popular vote bill, noting small states slitting their own throats by trying to skirt the Electoral College
1A Religion: Catholic foster care agency again challenging city policy forcing child placements with LGBTQ parents
Separation of Powers: 9th Circuit panel hears arguments in Climate Kids case seeking to establish fundamental right to sustainable environment; judge questions whether court has power to grant sweeping relief sought
1A: Supreme Court rejects Pamela Geller transit ad case, sends it back for lower court opinion
1A: “Who Owns Your Life Story?” 4th in series of 1A videos released
1A: Kentucky subpoenas to identify teachers who staged a sick-out to protest at state capital likely not a free speech violation
1A: law that lets you disclose all the facts in ethics complaint against Montana officials, but not the complaint itself, violates First Amendment
2A: Qualified noncitizen lawful permanent residents can’t be shut out from concealed carry permits (federal judge in California)
4A: police had reasonable suspicion to stop a second car apparently driving in tandem with a first car about which a tip had been received as carrying heroin. (6th Circuit)
5A Eminent Domain: commentary to effect government should not be able to get away with not paying just compensation just because asset not earning positive cash flow at the moment (Love Terminal case)
8A: “Excessive Fines Clause Applies to Corporations” (Colorado Supreme Court)
10A: Kamala Harris federal preclearance proposal for state abortion restrictions would upset federal/state balance
14A Equal Protection: Poisonous civil rights theories push racism under the guise of ‘racial equality’ (check your privilege, equality of outcome, etc.)
Separation of Powers: House attempts to keep alive federal FGM prosecution under a statute ruled unconstitutional and which the Justice Department has chosen not to defend on appeal
State Constitutions: Alabama Senate unanimously passes amendment to exclude noncitizen voting; measure to appear on 2020 ballot
Economic Freedom: 2 court rulings against food trucks overreach in “prohibiting you from operating near your competitors, or tracking you like a criminal out of fear you may sell delicious food to willing customers.”
State Department commission to examine whether ‘human rights’ offend U.S. concepts of natural law and natural rights
Shame! Barack Obama asserts “We hold these truths...” comes from the Constitution when in fact it comes from the Declaration of Independence
Kudos! “St Louis Blues Fans Finish National Anthem when Video System Fails”
14A Fundamental Rights: Supreme Court upholds Indiana law requiring burial or cremation of human remains from abortions (victory for personhood movement)
14A Fundamental Rights: Supreme Court not ready to take on issue of selective abortion on basis of race, gender, disability, etc., but Justice Thomas says Court must confront abortion being used as tool of ‘eugenic manipulation’
14A: fundamental rights: federal judge blocks implementation of Mississippi’s heartbeat abortion law which was supposed to take effect July 1st.
14A,1A: 20 states, others sue to block Trump rule bolstering conscience protections for healthcare providers refusing to participate in abortions, other procedures
1A Press: stay for political bias lifted, criminal prosecution to proceed against baby parts videographer who exposed Planned Parenthood
1A Press: U.S. charges WikiLeaks founder Julian Assange with publishing classified information - first time a publisher has been indicted for printing accurate material.
Discrimination: Supreme Court lets stand Pennsylvania school district’s transgender bathroom policy, turning away bodily privacy arguments
Discrimination: Proposed HHS rule would remove Obamacare protections for transgenders
Separation of Powers - federal judge blocks President Trump’s plans to use reallocated Defense Department funds to build the border wall.
Executive Privilege: here’s a rundown of the Trump v. House Democrats subpoena wars
Electoral College: Nevada legislature passes National Popular Vote compact; Governor has not indicated his position
1A: free speech rights upheld for anti-Semitic speakers at UMass
1A: Missouri city ordinance used to block ‘Black Lives Matter’ sign in front yard likely violates First Amendment
1A: Savannah tour guide licensing law offends First Amendment; 100-question test amounts to government deciding who gets to speak
1A: campaign finance law limit on contributions applies to bequests, D.C. Circuit rules; corrupt bargains still possible
1A Religion: Ohio city won’t compel Catholic school to operate contrary to its religious beliefs in employment, admissions, and other policies
Electoral College: state may fine ‘faithless’ presidential electors who go against voters’ wishes
“I Didn’t Earn Slavery Reparations, and I Don’t Want Them” - slave ancestor lived the American dream
Kudos to Santa Barbara City College instructor who recited the Pledge of Allegiance at board of trustees meeting over jeers of faculty, staff, and students
10A: Texas asserts sovereignty against Congress, refuses to comply with investigative demands
1A Religion: Christian student, forced to recite the Islamic conversion creed, petitions Supreme Court to hear her case
1A: “White House Won't Sign Global Pact To 'Combat Extremism' Due To 1st Amendment Concerns”
8A Cruel and Unusual: 9th Circuit hears case from Idaho transgender inmate demanding sex reassignment surgery
14A Fundamental Rights: federal judge wants to hear more evidence, vacates his own decision striking down Virginia law preventing nurses from performing abortions as undue burden on constitutional right
“AG Barr blasts federal judges who impose nationwide injunctions”
1A: courts split on whether state anti-BDS laws violate the First Amendment
1A: residential sign ordinance unconstitutionally overbroad; effectively outlawed Welcome Home banners, Happy Birthday balloons, security stickers, and Christmas lights
Free Expression: Ontario anti-hate bill could outlaw all public demonstrations by Christians (deemed offensive by Islamists, LGBT, etc.)
Free Expression: Giving primacy to diversity has hurt free expression - safe spaces, speech codes, censorship of ideas, etc.
1A Press: raid on San Fran freelancer’s home looking for name of source raises questions under California journalist shield law
2A: California bill would expand red flag law to allow co-workers, employers, and faculty to request court to take guns away
“New York Wants To Force All Gun Owners To Buy A Million Dollar Liability Policy”
Double Jeopardy: bill to allow state charges against someone receiving a presidential pardon advances in New York
5A Takings: is airport terminal worth the $17 million it cost to build it or $0 because it had yet to turn a profit?
5A Takings: pipeline companies taking land under court orders but not paying owners for years; Supreme Court asked to hear case on ‘take first and pay later’ condemnations
Economic Freedom: Florida bill aims to reduce crime by reducing occupational licensing requirements which make it harder for ex-cons to find work
19A: it’s the 100th anniversary of the House passage of women’s right to vote
14A: Plessy ‘separate but equal’ decision one of Supreme Court’s worst ever
Kudos! Boy from Navy family arranges discount at Lowe’s so more of his neighbors can fly American flag
Shame! Co-captain of United States Women’s national soccer team stomps her little foot, says she’ll probably never sing the National Anthem again because this President makes her so mad
Alabama’s Governor signed into law a bill to ban most abortions in the state. The law is intended as a direct challenge to the Supreme Court’s 1973 Roe v. Wade decision extending the fundamental right to privacy under the 14th Amendment Due Process clause to include a right to abortion. Alabama’s law does not take effect for 6 months but, already, at least one Alabama doctor has vowed to keep performing abortions when the law goes into effect.
Alabama joins other states that have recently passed restrictions on abortion. Heartbeat bills were passed in Georgia, Kentucky, Mississippi, and Ohio. In addition, Missouri’s Governor is expected to sign a heartbeat bill passed by the legislature this past week.
Meanwhile, observers reading the tea leaves in a different kind of case this past week said liberal Justice Breyer was sounding the alarm about the Supreme Court overturning Roe v. Wade. The case had to do with where states can be sued but the opinion overruled a 40-year-old precedent in the process. Breyer’s dissent concluded: “Today’s decision can only cause one to wonder which cases the Court will overrule next.” Overturning precedent is rare because of the judicial doctrine of ‘stare decisis’ which, in Latin, means ‘to stand by things decided’.
Will the Supreme Court overturn Roe v. Wade and uphold Alabama’s abortion ban? The appointments of Justices Kavanaugh and Gorsuch give pro-lifers hope. But it’s dangerous to make predictions, especially about the future. There were five votes on the Supreme Court to overturn Roe in 1992, but it didn’t happen. Instead, Justice Kennedy switched his vote and the Casey case has been used numerous times since to knock down state restrictions as ‘undue burdens’ on the right to abortion. Some say Chief Justice John Roberts is in the role of swing justice today and point out that he has never voted to strike down a state abortion restriction.
So it’s anybody’s guess what will happen if the issue does head back to the Supreme Court. The Court could uphold Roe, knock it down - sending the entire issue back to the states - or modify it as it did in the Casey case. That we are still fighting about abortion 40 years after Roe became the law of the land is testimony to the passion and endless inventiveness of pro-life activists who have been holding annual marches, praying outside of Planned Parenthood clinics, and producing a veritable blizzard of state and federal legislation - pain capable bills, dismemberment bills, heartbeat bills, and 44 attempts in the U.S. House at last count to stop infanticide. Other activists on the right would do well to study their methods and bring them to bear on other policy issues. Perhaps most importantly, pro-lifers did not quit in the face of long odds. They kept fighting. They’re an inspiration to anyone fighting the Left on other issues.
14A Fundamental Rights: legislation banning most abortions in Alabama awaits Governor’s signature; measure is meant as a direct challenge to the Supreme Court’s Roe versus Wade decision.
11A: Supreme Court overturns precedent, bars suits against states in the courts of other states; implications for overturning Roe v. Wade
1A: Texas town stands up against Freedom From Religion Foundation bullies, keeps crosses on courthouse
1A: First Amendment protects ‘I eat a**’ bumper sticker, prof argues
Free Expression: Canadian father subject to arrest if he uses ‘wrong’ gender pronoun in describing his trans child
Free Expression: candidate for judgeship loses nomination, gets fired from his law firm for being a conservative
2A: Arizona legalizes nunchucks
5A Eminent Domain: Baltimore is failing because it does not respect property rights. Seize the Preakness - really?
5A,4A: allowing union organizers on agricultural land is not a Fifth Amendment ‘taking’ or a Fourth Amendment ‘seizure’ (9th Circuit)
8A: “death row inmates’ long-term detention in conditions amounting to solitary confinement created a ‘substantial risk’ of psychological and emotional harm” (4th Circuit)
8A: Florida man sues gangster-city over $30,000 in fines for not mowing the lawn
Discrimination: Miami’s lawsuit against banks for predatory lending to black and Latino homebuyers may proceed; city plausibly alleges disproportionate defaults and hit to tax base from banks’ practices (11th Circuit)
14A Due Process: dismissing administrative appeal after litigant relied on the agency’s guidance for proper procedure is a denial of due process (Texas Supreme Court)
Former Virginia lawmaker Bob Marshall pens book on how to reclaim the Republic
No, the trivial garbage the House Dems keep bringing up is not a ‘constitutional crisis’
1A: Scholars, writers issue statement promoting campus free speech (you can still sign; more than 500 have)
1A: San Francisco sues to force doctors to perform abortions and other procedures against their conscience
1A Religion: injection of Buddhist-inspired ‘mindfulness’ practices into schools is an unconstitutional establishment of religion, conservative group argues
2A: U.S. pulls out of Obama-era UN arms treaty
2A: “Pennsylvania GOP Rep. Moves to Impeach ‘Rogue’ Pittsburgh Mayor Over Gun Control Measures”
8A: federal appeals court rules prison must give inmate addiction treatment
4A: Supreme Court is asked to take case of 4-year-old girl who was strip-searched; case could be occasion to refine tangled ‘qualified immunity’ doctrine
5A Vagueness: Supreme Court decision from last term hampering federal prosecutions of young terror suspects
14A Fundamental Rights: federal judge strikes down Virginia law preventing nurses from performing abortions as undue burden on constitutional right
1A: Immigration rights activist successfully argues unconstitutional retaliation for protected speech when ICE tries to deport him.
1A: students have a constitutional right to call for their principal to be fired
1A: podcast considers whether what Assange did was protected journalism or cyber-crime
1A: House of Representatives can insist its daily prayer be religious in nature, not atheist
2A: website not liable for allowing searches for private-seller gun ads
4A: chalking tires for parking enforcement is a ‘search’ but may be allowable under various exceptions to warrant requirement
6A: right to a public trial is not absolute; courtroom can be cleared of the public to accommodate Muslim witness who refused to take off veil otherwise
14A: Circuit split on whether ban on toplessness for women violates Equal Protection
State Constitution: “Kansas Supreme Court Rules State Constitution Protects Right To Abortion”
Article argues Congress is the supreme branch of government, as it should be in a Republic of self-governing people