Published: Tue, 28 Feb 2017 00:00:00 -0500
Last Build Date: Tue, 28 Feb 2017 10:48:25 -0500
Tue, 28 Feb 2017 08:00:00 -0500Judging from yesterday's oral arguments in Packingham v. North Carolina, the Supreme Court seems inclined to overturn that state's law banning sex offenders from Facebook, Twitter, and other "commercial social networking Web sites." Robert Montgomery, a lawyer from the North Carolina Attorney General's Office, had a hard time persuading the justices that the law—which covers a wide range of sites accessible to minors and applies to all registered sex offenders, whether or not their crimes involved children or the internet—passes muster under the First Amendment. The case was brought by Lester Packingham, who in 2002, at the age of 21, pleaded guilty to taking indecent liberties with a minor. A first-time offender, he received a sentence of 10 to 12 months, after which he served two years of probation and was required to register as a sex offender for 10 years. Six years after Packingham's conviction, the North Carolina legislature passed a law that made it a Class I felony, punishable by up to a year in jail, for a registered sex offender to "access" any commercial website open to minors that facilitates social introductions, allows users to create web pages or profiles that include personal information, and enables users to communicate with each other. Packingham was caught violating the law in 2010, when he beat a traffic ticket and celebrated the event with an exultant Facebook post: Man God is Good! How about I got so much favor they dismiss the ticket before court even started. No fine, No court costs, no nothing spent….Praise be to GOD, WOW! Thanks JESUS! Trying to explain how punishing such innocent (and religious!) speech can be consistent with the First Amendment, Montgomery likened North Carolina's law to state bans on politicking within 100 feet of a polling place, which the Court upheld in the 1992 case Burson v. Freeman. "I think that does not help you at all," Justice Anthony Kennedy said, provoking laughter from the audience. "If you cite Burson, I think you lose." Justice Elena Kagan briefly seemed to be helping Montgomery, only to drive Kennedy's point home. "I agree with you," she told Montgomery. "That's your closest case....It's the only case that I know of where we've permitted a prophylactic rule where we've said not all conduct will have these dangerous effects, but we don't exactly know how to separate out the dangerous speech from the not-dangerous speech....That is like one out of a zillion First Amendment cases that we've decided in our history. And as Justice Kennedy says, there are many reasons to think it's distinguishable from this one." Justice Stephen Breyer was equally discouraging. "The State has a reason?" he said. "Yeah, it does. Does it limit free speech? Dramatically. Are there other, less restrictive ways of doing it? We're not sure, but we think probably, as you've mentioned some. OK. End of case, right?" Kagan emphasized the extent of the law's interference with political speech, noting that it prevents sex offenders from following the president, members of Congress, and other elected officials on Twitter or Facebook. "This has become a crucially important channel of political communication," she said. "And a person couldn't go onto those sites and find out what these members of our government are thinking or saying or doing....These sites have become embedded in our culture as ways to communicate and ways to exercise our constitutional rights." The law clearly covers social media platforms such as Facebook and Twitter, and it arguably applies even to ubiquitous services such as Google and Amazon, which are not primarily social networking sites but seem to meet the statutory definition. Although Montgomery claimed news sources such as nytimes.com are not covered, they might be if they let readers register and create profiles for commenting. "Even if The New York Times is not included," Justice Ruth Bader Ginsburg said, "the point is that these people are being cut off from a very large part of the marketplace of ideas. And the First Amendment includes not only the right t[...]
Mon, 27 Feb 2017 12:50:00 -0500
(image) Last week the U.S. Court of Appeals for the 4th Circuit upheld a Maryland gun control law that bans "assault weapons" and detachable large-capacity magazines, holding that the Second Amendment offers no impediment to such legislation.
Among the judges who joined the 4th Circuit's 10-4 decision in this case, Kolbe v. Hogan, was a highly respected legal conservative named Judge J. Harvie Wilkinson III.
What led a respected conservative judge to uphold a sweeping gun control law? In addition to joining the majority opinion, Wilkinson filed a separate concurrence in which he explained his thinking. According to Wilkinson, the matter boiled down to the core principle of judicial deference. "It is altogether fair," Wilkinson wrote, "to argue that the assault weapons here should be less regulated, but that is for the people of Maryland (and the Virginias and the Carolinas) to decide."
In Wilkinson's view, if the federal courts enter the business of invalidating democratically enacted gun control measures such as the ones at issue here, the end result will be to "empower the judiciary and leave Congress, the Executive, state legislatures, and everyone else on the sidelines." As far as Wilkinson is concerned, the federal courts "are not impaneled to add indefinitely to the growing list of subjects on which the states of our Union and the citizens of our country no longer have any meaningful say."
Wilkinson's concurrence offers the classic argument for judicial deference, or judicial restraint: If you don't like what your lawmakers have done, take your complaint to the ballot box, not to the courthouse. For decades this was a dominant view among legal conservatives. Indeed, as recently as twenty years ago, Wilkinson's ode to judicial minimalism would have placed him squarely within the mainstream of conservative legal thought, even though it arose in the context of a Second Amendment case.
But the times are changing. Judicial deference is no longer quite as popular among legal conservatives as it once was, and this particular case helps to illustrate why. After all, doesn't the Second Amendment itself suggest that there are some subjects on which democratic majorities should not have any meaningful say? Doesn't the Constitution place certain rights beyond the reach of lawmakers, and isn't it sometimes the job of the federal courts to enforce those constitutional limits and strike down overreaching legislation, even when such judicial action requires the courts to act in an anti-democratic fashion?
As a principled advocate of judicial deference, Wilkinson effectively answers no to such queries. The big question going forward is how many legal conservatives are still willing to side with Wilkinson.
Sat, 25 Feb 2017 08:00:00 -0500Last month, an Indiana wine retailer and a handful of consumers in Michigan filed suit in federal court to challenge a new Michigan law that bars out-of-state retailers from shipping wine into the state. The Michigan law, passed last month, lets retailers inside the state buy a "specially designated merchant license" that will allow them to ship wines to in-state consumers. The benefits of the law, which takes effect next month, is that it'll "make it easier for wineries and in-state retailers to ship to Michigan consumers," reports Wine Spectator. But the law prohibits out-of-state retailers from buying permits. If you just read that and looked up at the date stamp on this column because you thought this might be a reprint of some classic article from 2005, you'd be forgiven. Wasn't Granholm v. Heald, decided by the U.S. Supreme Court a dozen years ago, a case about a Michigan law that barred out-of-state wineries from shipping wine into the state? And didn't the Supreme Court rule that Michigan's law was unconstitutional? Yes and yes. And yet here we are. Indeed, the new Michigan law and lawsuit raise startlingly similar dormant Commerce Clause and Twenty-First Amendment questions that many assume were settled by the U.S. Supreme Court in Granholm. Three years after Granholm, a federal court ruled against Michigan in another wine-shipment case that was even more on-point. Just what the hell is Michigan doing? The Michigan law at issue in Granholm permitted Michigan wineries to ship their products directly to consumers in the state but prohibited out-of-state wineries from doing the exact same thing. The Court held in that case that the Michigan law "discriminate[s] against interstate commerce in violation of the Commerce Clause [and] is neither authorized nor permitted by the Twenty-first Amendment." One key question that arose in the wake of Granholm was whether "states will remove the discriminatory legal impediments to interstate wine shipping." Most states have, according to the National Law Review, which notes that "nearly every state now allows wineries to ship wine directly to in-state consumers." Retailers—wine superstores and others—are now bumping up against the Michigan law. Notably, Granholm pitted what I think is the Constitution's most overrated amendment—the Twenty-First—against perhaps its most important unwritten rule, the so-called dormant Commerce Clause. Thankfully for wineries and consumers, the latter won. But what's so lousy about the Twenty-First Amendment? After all, didn't it end Prohibition? Hardly. Instead, it simply shifted much of the power to prohibit and incessantly regulate alcohol from the federal government to the states. The Twenty-First Amendment—particularly the language in its second section, and the way lawmakers and courts have interpreted that language—is why we have things like dry counties, happy hour bans, and a mandatory three-tier system in forty-nine of fifty states. While in one sense Granholm reined in state power under the Twenty-First Amendment, in another it also demonstrated the awesomeness of that power. In its ruling in the case, the Supreme Court made clear that states could still use their breathtaking powers to regulate alcohol under the Twenty-First Amendment to ban all shipments of wine. Period. The Court simply held they couldn't favor in-state producers over out-of-state producers if they did so. The Twenty-First Amendment sucks. Michigan is hardly alone in having crappy Twenty-First Amendment inspired alcohol-distribution laws in place. Pennsylvania law forces anyone driving through the state with so much as a can of beer in their car and who might want to stop off in the state for a spell to, say, learn more about "Indepedence" or the "Consitution," to buy a distributor's license from the state. I have no idea what might become of the current Michigan law if this case were to make it to the Supreme Court. Only four Justices who ruled in the 2005 case remain on the bench: Justices Kennedy, [...]
Wed, 22 Feb 2017 15:40:00 -0500President Donald Trump's administration is expected to formally announce (possibly today) that it is withdrawing the legal guidance distributed to public schools by both the Department of Justice and Department of Education that they are obligated under federal civil rights and education laws to accommodate transgender students in restroom, locker room, and other sex-segregated facilities. Assuming this is true (and Press Secretary Sean Spicer said so in a presser, so there's no reason to believe otherwise) it complicates this legal battle, but to be clear, it doesn't end it. There's some lazy headlines suggesting that the administration is "withdrawing protections" for transgender students, but there's a Supreme Court case in play right now and other court rulings pro and con. Withdrawing the Obama administration's guidance should not be taken to mean that even this one battle has ended. While it is true that the Obama administration has attempted to use executive authorities to push transgender accommodation on all public schools, the idea behind it (transgender protections are included in sex discrimination protections) has precedent in legal decisions that actually go back prior to Obama's presidency. The argument is that discrimination against transgender people counts as sex discrimination on the basis of whether somebody's appearances or mannerisms match "sex stereotypes." A previous Supreme Court decision established that discrimination on the basis of these stereotypes counts as forbidden sex discrimination—you can't discriminate against a woman for being masculine or a man for being feminine. There have been a handful of court cases that have ruled in favor of such positions also applying to transgender people. And when it comes to schools, the argument here by Obama's administration is that Title IX of the Education Amendments of 1972 also requires such a reading. That Title IX actually says nothing about transgender students is relevant. In the case being considered by the Supreme Court, the justices will consider whether a legal concept known as the Auer deference should apply. This is a principle from a Supreme Court precedent that the courts generally give government agencies deference to implement statutes or regulations as they see fit unless they are doing something that directly contradicts what the law states. Assuming the Trump administration does revoke the Department of Justice and Department of Education's guidance to schools, this is naturally going to undercut student Gavin Grimm's case, because the federal government is no longer attempting to implement Title IX this way. But, the Supreme Court is considering more than just agency deference to interpret the law. The court will be considering whether the text of Title IX obligates public schools to accommodate transgender students. If they decide one way or another on Title IX itself, that could possibly bypass the consideration of deference to the administration. So: It's complicated. Resist the urge to assume the case is going down. And even if it did, the Trump administration's position is that states should handle the rules, not that transgender students shouldn't be accommodated. As for what schools should do, I'm on the record as supporting the concept that schools, as long as they're government-run and publicly funded institutions, should be required to accommodate the needs of transgender students. I am perhaps not so strict on what that looks like as perhaps some transgender activists should demand (I think this can be solved by increased body privacy in facilities), and I'm not fond of the manner by which the Obama administration attempted to just push this on school districts while it was still a focus of dispute, which certainly contributed to a cultural backlash. Also of interest to those who were watching the partisan fights over Trump's cabinet nominations play out: According to sources talking to both The New York Times and The Washington Post, Ed[...]
Tue, 21 Feb 2017 10:10:00 -0500There are currently two vacancies on the New Orleans-based U.S. Court of Appeals for the 5th Circuit, the federal appellate court whose jurisdiction covers federal districts in Louisiana, Mississippi, and Texas. According to a recent report published in Legal Times, the Trump administration is moving quickly to fill those vacancies and is now considering a shortlist of six candidates for the two jobs. What names are on the list? Here's Legal Times: According to four people who are familiar with the process but who declined to be named, the candidates being considered include: Texas Supreme Court Justice Don Willett; U.S. District Court Judge Reed O'Connor of Fort Worth; former Texas solicitor general James Ho; Andy Oldham, a deputy general counsel to Gov. Greg Abbott; Michael Massengale, a justice on Houston's First Court of Appeals, and Brett Busby, a justice on Houston's Fourteenth Court of Appeals. Two names on this list jump right out at me. The first is Texas Supreme Court Justice Don Willett, a rising star in conservative and libertarian legal circles who also appeared on Trump's recent list of potential U.S. Supreme Court nominees. Willett is best-known for his concurring opinion in the 2015 case of Patel v. Texas Department of Licensing and Regulation. At issue was whether state officials had a legitimate health or safety reason to require eyebrow threaders to obtain an occupational license before they could lawfully charge customers for the act of threading a piece of cotton string through their eyebrows in order to remove old hair and skin. The Texas Supreme Court laughed away the state's ostensible justifications and struck down the regulation. Willett joined the majority opinion but also wrote separately in order to emphasize the broader issues at stake. His 49-page concurrence is effectively a call to judicial arms in defense of economic liberty. "This case is fundamentally about the American Dream and the unalienable human right to pursue happiness without curtsying to government on bended knee," he wrote. "It is about whether government can connive with rent-seeking factions to ration liberty unrestrained, and whether judges must submissively uphold even the most risible encroachments." I should also note that Willett's Patel opinion favorably cited my book Overruled: The Long War for Control of the U.S. Supreme Court. If successfully appointed to the 5th Circuit, Willett would immediately rank as one of the most libertarian-minded federal judges in the country. The second name on the 5th Circuit shortlist that jumps out at me is former Texas solicitor general James Ho. A former clerk to Justice Clarence Thomas, Ho is perhaps best known in legal circles for a 2006 law review article defending the constitutionality of birthright citizenship for the U.S.-born children of undocumented immigrant parents. "Birthright citizenship is guaranteed by the Fourteenth Amendment," Ho wrote. "That birthright is protected no less for children of undocumented persons than for descendants of Mayflower passengers." Notably, Ho's position here is directly at odds with the stated views of Donald Trump. In an August 2015 immigration white paper, for example, presidential candidate Trump vowed to "end birthright citizenship," calling it the "biggest magnet for illegal immigration." In an interview with Fox News host Bill O'Reilly, Trump said, "I don't think they have American citizenship," referring to the U.S.-born children of undocumented parents. "It's not going to hold up in court, it's going to have to be tested." Here's an amusing thought experiment: Trump tries to test his theory of birthright citizenship in the 5th Circuit and ends up in the courtroom of Trump-appointee Judge James Ho. How does Trump respond after Judge Ho rules decisively against him?[...]
Mon, 13 Feb 2017 11:06:00 -0500
(image) On Friday night, when you people were heading out for your libertine revelries, Reason Senior Editor Damon Root, author of the terrific Overruled: The Long War for Control of the U.S. Supreme Court, was spending nearly two hours dissecting an amazingly busy week on the SCOTUS/judiciary beat for The Fifth Column podcast. With co-host Michael Moynihan making a rare-of-late appearance (along with medium-rare impersonations of Judge Andrew Napolitano), Kmele Foster and I cross-examined barrister Root on the 9th Circuit's travel ban ruling, the shoddiness of the government's arguments, Judge Napolitano's theory of the case, SCOTUS nominee Neil Gorsuch's criticism of Trump's "so-called judge" remark, how Trump's court-bashing compares with Barack Obama's, what Gorsuch's record tells us, why media coverage of the Supreme Court is so awful, plus much more. Non-judiciary issues include the ongoing attacks against Yemen, Rand Paul's vote for Jeff Sessions, and The Decline of Western Civilization: Part II.
You can listen to the whole show here:
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Sun, 12 Feb 2017 08:00:00 -0500Supreme Court nominee Neil Gorsuch isn't just a respected judge; he also holds a philosophy degree from Oxford, where he studied under John Finnis, one of the most prominent scholars in natural law theory. That may seem arcane, but Gorsuch's views about natural law set him apart from colleagues on the bench—and those differences may trouble not just liberals, but perhaps conservatives and libertarians, too. Natural law is among the oldest philosophical traditions. Some of history's greatest geniuses, from Aristotle to Thomas Jefferson, devoted their most brilliant arguments to it, often differing about details but agreeing on the broad outlines. Natural law was the basis on which America's founders wrote the Constitution. Among other things, it holds that politics isn't just a matter of agreement. Instead, principles of justice, or the idea that murder or theft are wrong, run deeper than government's mere say-so. Those things are actually wrong, aside from whether or not they are legal—and that means government itself can act unjustly and even impose rules that don't deserve the name "law." That's a view many on both left and right share. The greatest spokesman for natural law in the twentieth century was probably Martin Luther King, who denounced segregation not because of its technical complexities, but because it betrayed the natural law principles of the Declaration of Independence. But most judges today—including liberals and conservatives—reject natural law. They embrace a different view, "legal positivism," which holds that individual rights or concepts of justice are really manufactured government fiat. Even Justice Antonin Scalia rejected natural law arguments. "You protect minorities only because the majority determines that there are certain minority positions that deserve protection," he said, not because everyone has basic rights under natural law. Still, even those who embrace natural law, including Justice Clarence Thomas, have their differences. For example, while Thomas and his allies see natural law as a basis for attacking legal protections for abortion and euthanasia—because they contradict the sanctity of life—others believe that natural law theory actually supports these rights, because it prioritizes individual autonomy. That debate arises from a central natural-law question: What is the source of the good? Are things like life or freedom good because they relate to human purposes—such as the pursuit of a fulfilling life—or are they just intrinsically good, without any deeper reason? This debate matters because if life is just inherently good, then even someone suffering a terminal illness who wants to end his own life should be barred from doing so because life is good, period. On the other hand, if life is only good because it serves the goal of happiness, then someone whose life has become a burden of suffering should be free to end it if he chooses. Oxford's John Finnis, and his student, Neil Gorsuch, embrace the intrinsic view: Life is just inherently good, full stop. In one scholarly article, Gorsuch argued that life is an "irreducible and categorical" good, not "instrumental or merely useful." Thus a person's "intent to die" should be off-limits, regardless of his suffering. But this is misguided. The very notion of "good" implies an answer to the question "for what?" The correct answer is, for a flourishing life: It's why we eat, exercise, marry, or get jobs. Goodness is a function of our purposes. As philosopher Tara Smith writes in one criticism of Finnis, saying something is just an "irreducible and categorical" good isn't really an argument—it's just a bare assertion, or an "anti-theory," that "does not offer a justification of morality so much as a contention that no justification is needed." It's the equivalent of "because I say so." Gorsuch's approach to natural law also indicates that he has a circumscri[...]
Thu, 09 Feb 2017 19:07:00 -0500
(image) President Donald Trump has just suffered a significant defeat in federal court. Today a unanimous three-judge panel of the U.S. Court of Appeals for the 9th Circuit denied the Trump administration's request to lift a nationwide temporary restraining order (TRO) that forbids the government from enforcing the president's executive order blocking travel to the U.S. from seven majority-Muslim countries.
"We hold that the Government has not shown a likelihood of success on the merits of its appeal, nor has it shown that failure to enter a stay would cause irreparable injury, and we therefore deny its emergency appeal," the 9th Circuit ruled today in Washington v. Trump.
In its decision, the 9th Circuit took a dim view of the Trump administration's broad assertions of executive power. "The Government has taken the position that the President's decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections," the 9th Circuit observed. The court then dismissed that government argument out of hand:
Although our jurisprudence has long counseled deference to the political branches on matters of immigration and national security, neither the Supreme Court nor our court has ever held that courts lack the authority to review executive action in those arenas for compliance with the Constitution. To the contrary, the Supreme Court has repeatedly and explicitly rejected the notion that political branches have unreviewable authority over immigration or are not subject to the Constitution when policymaking in that context.
The 9th Circuit also rejected the government's claim that the TRO should be lifted because Washington state will ultimately lose on the legal merits of its case:
The Government has not show that it is likely to succeed on appeal on its arguments about, at least, the States' Due Process Clause claim, and we also note the serious nature of the allegations the States have raised with respect to their religious discrimination claims.
The 9th Circuit also rejected the Trump administration's request to at least limit the scope of the TRO:
We decline to limit the scope of the TRO to lawful permanent residents and the additional category more recently suggested by the Government, in its reply memorandum, "previously admitted aliens who are temporarily abroad now or who wish to travel and return to the United States in the future." That limitation on its face omits aliens who are in the United States unlawfully, and those individuals have due process rights as well.
In short, the Trump administration lost on all counts. The nationwide temporary restraining order against Trump's travel ban remains in force and three 9th Circuit judges expressed serious reservations about the constitutionality of the government's actions.
It is likely that the Trump administration will now appeal this loss to the U.S. Supreme Court.
Update: President Trump has responded to the ruling on Twitter, writing, "SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!"
Thu, 09 Feb 2017 09:45:00 -0500
(image) It's not everyday that a judicial nominee openly criticizes the president who nominated him in the midst of the judicial confirmation process. But that is exactly what happened yesterday when Judge Neil Gorsuch, Donald Trump's nominee for the Supreme Court, denounced Trump's recent attacks on the judiciary as "demoralizing" and "disheartening."
Gorsuch's statements came in a meeting with Sen. Richard Blumenthal (D-Conn.), who later told the press what Gorsuch said about Trump. A spokesperson for Gorsuch then confirmed that the judge had indeed faulted the president. Sen. Ben Sasse (R-Neb.) has also reported that Gorsuch lambasted Trump in a meeting with him.
Predictably, Trump took to Twitter early this morning: "Sen.Richard Blumenthal, who never fought in Vietnam when he said for years he had (major lie),now misrepresents what Judge Gorsuch told him?" Unfortunately for Trump, Gorsuch's spokesperson has confirmed Gorsuch's words. Trump can tweet about it all he wants, but Trump can't change the reality of Gorsuch's statements.
Gorsuch is absolutely right to be dismayed by Trump's actions. Over the weekend Trump attacked the "so-called" federal judge hearing the case against his executive order banning travel from seven majority-Muslim countries. "Just cannot believe a judge would put our country in such peril. If something happens blame him and court system," Trump wrote. Trump's bully pulpit tactics are plainly intended to undermine the independence of the judicial branch and to deter it from ruling against him.
When Trump nominated Gorsuch to the Supreme Court last week, I noted that Gorsuch's judicial record includes some impressive opinions against overreaching law enforcement and against the overreaching executive branch. "Gorsuch demonstrated admirable and reassuring judgement in these cases," I concluded. "It's not difficult to imagine Gorsuch imposing the same severe judicial scrutiny against the misdeeds of the Trump administration."
It turns out that Gorsuch felt compelled to benchslap Trump a little sooner than expected.
Related: If you were outraged by Obama's attacks on the judiciary, you should be outraged by Trump's.
Wed, 08 Feb 2017 00:01:00 -0500Donald Trump's Twitter temper tantrum over the legal challenge to his immigration order suggests he does not appreciate the role of an independent judiciary. Fortunately, Trump's lack of interest in such matters has given us a Supreme Court nominee who takes that role seriously and can be expected to resist presidential power grabs. Last Friday, James Robart, a federal judge in Seattle, issued a temporary restraining order that blocked enforcement of Trump's 90-day ban on travelers from seven Muslim-majority countries and 120-day suspension of the U.S. Refugee Admissions Program. The next morning, Trump slammed Robart on Twitter: "The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!" Trump followed that up on Sunday with a tweet that castigated Robart for exposing Americans to the risk of a terrorist attack: "Just cannot believe a judge would put our country in such peril. If something happens blame him and court system. People pouring in. Bad!" It is hardly surprising that a president would disagree with a ruling that stops him from doing what he wants to do. But by condemning a "so-called judge" and the "court system" for daring to frustrate his will, Trump cast doubt on the judicial branch's authority to do what it is supposed to do: check the other branches of government when they violate the law. Alarmed by a president who sounds like a tin-pot dictator, Trump's critics understandably worried that his choice to replace the late Supreme Court Justice Antonin Scalia would be someone with authoritarian instincts who would bend over backward to accommodate the president's agenda. But judging from his record on the U.S. Court of Appeals for the 10th Circuit, Neil Gorsuch is not that guy. The same progressives who claim Gorsuch would be a "rubber stamp" for Trump are troubled by his criticism of the Chevron doctrine, which says judges should defer to bureaucrats' interpretations of the laws they enforce. But Gorsuch's skepticism of that principle, which is based on his respect for the separation of powers, shows he is not shy about challenging the executive branch when it exceeds its bounds. Gorsuch's concern about overweening executive power is illustrated by two 2016 opinions in which he rejected the retroactive application of an agency's legal interpretation. One case involved an unauthorized immigrant seeking legalization, the other a home health service provider whose Medicare reimbursements were deemed improper based on regulations announced years after the claims were filed. Gorsuch, like Scalia, is a critic of vague criminal statutes and a stickler when it comes to requiring that prosecutors prove all the elements of an offense. Both tendencies are apparent in a 2015 opinion that overturned the Analogue Act convictions of two convenience store owners because the government had not proved they knew enough about the psychoactive "incense" they sold to be guilty of violating that law. Gorsuch's respect for the zone of privacy protected by the Fourth Amendment is also reminiscent of Scalia. Last year, dissenting from a 10th Circuit ruling that allowed police officers to ignore multiple "No Trespassing" signs on the property of a suspected drug dealer, Gorsuch faulted his colleagues for endorsing "an irrevocable right to enter a home's curtilage to conduct a knock and talk." In another 2016 decision that surely would offend Trump's "law and order" sensibilities, Gorsuch sided with a man convicted of possessing child pornography. His majority opinion agreed that the National Center for Missing and Exploited Children qualifies as a governmental actor under the Fourth Amendment, meaning its warrantless search of the defendant's email was presumptively unconstitutional. Why would Trump pick a Supre[...]
Tue, 07 Feb 2017 14:20:00 -0500The Trump administration has told the U.S. Court of Appeals for the 9th Circuit that the federal courts have no business taking "the extraordinary step of second-guessing a formal national-security judgment made by the President himself pursuant to broad grants of statutory authority." This statement came as part of the government's brief asking the 9th Circuit to lift the nationwide temporary restraining order (TRO) that currently blocks the enforcement of President Donald Trump's controversial executive action banning travelers from seven majority-Muslim countries. The 9th Circuit is scheduled to hear arguments today about whether or not that nationwide block should be lifted. The TRO came in response to a constitutional challenge filed against the Trump administration by the states of Washington and Minnesota. Those states allege that Trump's travel ban violates the constitutional guarantees of equal protection, due process, and the non-establishment of religion. They also challenge the president's statutory authority to act in this manner. Federal Judge James Robart issued the TRO last week after deciding that the state challengers had a likelihood of succeeding on the merits. The executive order was then blocked from going into effect while the underlying legal challenge proceeds in federal court. The Trump administration wants the block lifted and the travel ban restored. Among other things, it maintains that because the president acted here in the name of national security, his executive order is effectively beyond the reach of "even limited judicial review." Over the weekend on Twitter, Trump himself cast even greater aspersions on the authority of the federal courts to sit in independent judgment of his executive actions. After denouncing Judge Robart as a "so-called judge" whose opinion "essentially takes law-enforcement away from our country," Trump went on to add, "Just cannot believe a judge would put our country in such peril. If something happens blame him and court system." Setting aside the constitutional merits of the legal challenge, it seems to me at the very least that the Trump administration is on shaky ground when it claims that the travel ban should be immunized from judicial review on account of its ostensible connection to the president's "formal national-security judgment." After all, the federal courts have repeatedly reviewed executive actions that were carried out in the name of national security. As the Supreme Court recently stated in Holder v. Humanitarian Law Project (2010), "national security and foreign relations do not warrant abdication of the judicial role." For example, consider Rasul v. Bush (2004), in which the Supreme Court held that U.S. federal courts have jurisdiction to review "the legality of Executive detention of aliens in a territory over which the United States exercises plenary and exclusive jurisdiction, but not 'ultimate sovereignty.'" That case recognized habeus corpus rights for non-citizen detainees held at the U.S. military base at Guantanamo Bay, Cuba. The Bush administration had argued that the federal courts had no business nosing around down there in the first place. The next move in the legal battle over Trump's travel ban rests in the hands of the 9th Circuit, which is expected to decide this week whether or not to leave the TRO in place. It seems likely, however, that this matter will soon be on the fast-track to the Supreme Court. Related: Trump vs. the Judiciary[...]
Mon, 06 Feb 2017 07:30:00 -0500In his 2006 book about assisted suicide, Supreme Court nominee Neil Gorsuch takes issue with the "libertarian principle" that requires legalization of the practice. The same principle, Gorsuch argues, would also require the government to allow "any act of consensual homicide," including "sadomasochist killings, mass suicide pacts...duels, and the sale of one's life (not to mention the use of now illicit drugs, prostitution, or the sale of one's organs)." That's right: If the government lets people kill themselves, it might also have to let them smoke pot. Despite the horror of taboo intoxicants suggested by that passage, Gorsuch does not seem to be blinded by pharmacological phobia when he hears drug cases. Two opinions he wrote in 2015—one involving mens rea, the other the Fifth Amendment's ban on compelled self-incrimination—demonstrate a sophisticated understanding of drug policy issues and suggest Gorsuch is less eager than some judges to facilitate enforcement of prohibition by compromising civil liberties. In U.S. v. Makkar, a 2015 case involving Oklahoma convenience store owners arrested for selling "incense" containing a synthetic cannabinoid, Gorsuch noted that the merchants, Iqbal Makkar and Gaurav Sehgal, seemed to be concerned about complying with the law: When questions surfaced about the incense they carried on their shelves, the men spoke with state law enforcement officers, offered to have the officers test the incense to determine its legality, and offered as well to stop selling the product until the results came in. But this cooperation with state authorities apparently won the men little admiration from federal investigators: soon enough they found themselves under indictment and convicted for violating the Controlled Substance Analogue Enforcement Act (Analogue Act), conspiracy, and money laundering. Writing for a three-judge panel of the U.S. Court of Appeals for the 10th Circuit, Gorsuch agreed with Makkar and Sehgal that they had been improperly convicted under the Analogue Act, "a curious animal" that is meant to criminalize production and distribution of psychoactive substances that are not explicitly prohibited by the Controlled Substances Act (CSA). To be covered by the Analogue Act, according to the Supreme Court's interpretation, a substance must be substantially similar in chemical structure and effect to a drug listed in Schedule I or II of the CSA. To convict a supplier of violating the Analogue Act, the government must prove he knew the drug had these features or knew the drug was banned by that law or by the CSA. Gorsuch noted in passing that the Supreme Court's construction of the Analogue Act may not adequately address "vagueness concerns," since "it's an open question...what exactly it means for chemicals to have a 'substantially similar' chemical structure—or effect." In any case, he said, prosecutors failed to prove that Makkar and Sehgal met the law's men rea requirements. "The government didn't attempt to show that Mr. Makkar or Mr. Sehgal knew the incense they sold was unlawful under the CSA or Analogue Act," he writes. No did it try to show the defendants knew the incense contained a substance with a chemical structure similar to that of a Schedule I or II drug. "As far as we can tell," Gorsuch said, "at trial the government introduced no evidence suggesting that the defendants knew anything about the chemical structure of the incense they sold." Instead prosecutors convinced the trial judge to approve "an instruction permitting the jury to infer that the defendants knew the incense they sold had a substantially similar chemical structure to JWH–18 [a synthetic cannabinoid] from the fact they knew the incense had a substantially similar effect to marijuana." That inference[...]
Mon, 06 Feb 2017 00:01:00 -0500During his Senate confirmation hearings, Neil Gorsuch may be grilled on such legal topics as due process, enumerated powers and stare decisis. I'm hoping the discussion will also get around to a less arid subject: sodomy. Not that I care what the Supreme Court nominee does under the sheets, and the dialogue I envision would probably qualify as PG-13. But his view of two major rulings on state laws banning certain types of sexual conduct is worth investigating. A candid discussion might make Americans wonder whether the judicial philosophy he upholds is quite as appealing as it sounds. In nominating Gorsuch, President Donald Trump wanted to duplicate the late Justice Antonin Scalia's "image and genius." Gorsuch described Scalia, whose death created the vacancy he was chosen to fill, as a "lion of the law." In a speech last year, he embraced him as a model. Both Republicans and Democrats agree that the two are as different as Mary-Kate and Ashley Olsen. That brings us to the matter of sodomy. In 1986, shortly before Scalia joined the Supreme Court, the justices upheld a Georgia law making it a crime to seek gratification in oral or anal sex, gay or straight. The case arose after police arrested two men caught lustily violating that law in a private home. "The Constitution does not confer a fundamental right upon homosexuals to engage in sodomy," said the court. Had he been a justice at the time, Scalia would have voted with the majority. We know because he bitterly objected in 2003 when the court changed its mind. Striking down a Texas ban on homosexual sodomy, Justice Anthony Kennedy wrote that the two men challenging the law "were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment." Conservatives denounced the decision as a case of judicial activism. Then-Sen. Rick Santorum, R-Pa., said it opened the way to legalizing incest. Evangelist Jerry Falwell called it "a tragedy for America." What they were defending was a criminal statute telling grown-ups what they could do to gratify each other in bed. The very idea may sound preposterous now, but it wasn't then; 14 states had similar laws. Such medieval prohibitions would still be allowed if a certain sainted justice had gotten his way. In a blistering dissent, Scalia insisted the state of Texas was perfectly entitled to outlaw "certain forms of sexual behavior" because it regards them as "immoral and unacceptable." In overturning the ban, he charged, the court had "signed on to the so-called homosexual agenda" and invited "a massive disruption of the current social order." By the logic of his judicial philosophy of originalism—relying on what the words of the Constitution were understood to mean when it was ratified—his view was understandable. After all, the words "oral sex" are flagrantly absent from the Constitution. He could also point to the long history of laws against oral and anal pleasuring and to the obligation of the court to follow precedents, notably the 1986 ruling. So the question for a nominee who fervently champions Scalia's approach to judging is: What about sodomy? The 2003 decision no longer gets much attention from conservatives. Scalia's caustic fulminations on the topic were left out of the eulogies. No Republican has endorsed Gorsuch on the grounds that he would uphold laws against gay sex. But given the chance, why wouldn't he? If he reveres Scalia and his approach, it would be logical for him to agree that oral and anal sex can be banned. But to admit as much would alarm most Americans—who think that adult partners should be free to do whatever floats their boats. To repudiate Scalia, however, would suggest there is something fundament[...]
Sun, 05 Feb 2017 16:00:00 -0500Power-hungry American presidents inevitably come into conflict with the judicial branch of the U.S. government. President Franklin Roosevelt, for example, grew so aggravated after watching his New Deal agenda lose repeatedly at the Supreme Court (including several 9-0 defeats), that he tried in 1937 to give himself the power to pack the Court with as many as six new justices who were ready and willing to side with his administration in future cases. Thankfully, FDR's blatant attempt to interfere with a co-equal branch of government failed miserably. What form will President Donald Trump's inevitable clash with the courts take? We are getting some indication. On Friday Judge James Robart of the U.S. District Court for the Western District of Washington at Seattle, a George W. Bush appointee, issued a temporary nationwide restraining order that blocks the U.S. government from enforcing President Trump's executive action banning immigrant and nonimmigrant travelers from seven majority-Muslim countries. Robart's order came in response to a legal challenge filed by the state of Washington against Trump's travel ban. "The Executive Order has both the intent and effect of discriminating based on national origin and religion, in violation of the Constitution," the state argues. "While preventing terrorist attacks is an important goal, the order does nothing to further that purpose by denying admission to children fleeing Syria's civil war, to refugees who valiantly assisted the U.S. military in Iraq, or to law-abiding high-tech workers who have lived in Washington for years." According to the state, to allow Trump's executive order to go into effect while this legal challenge is proceeding would cause irreparable harm to lawful permanent residents, to businesses, and to families in Washington. The state also maintains that it is likely to prevail on the merits of its case. Judge Robart agreed. It now falls to the U.S. Court of Appeals for the 9th Circuit to give full consideration to whether or not Judge Robart's order should remain standing. In response to this preliminary victory for Washington state, President Trump lashed out on Twitter. "The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!" Trump declared. A day later, Trump tweeted this: "Just cannot believe a judge would put our country in such peril. If something happens blame him and court system. People pouring in. Bad!" Back in April 2012, most conservatives were outraged when President Barack Obama saw fit to give a press conference in which he lectured the Supreme Court about why it would be "judicial activism" for the Court to strike down Obamacare on constitutional grounds. Those conservatives were right to be outraged. The Supreme Court was then in the midst of its Obamacare deliberations and the president was clearly trying to influence the outcome of the case by throwing some executive weight around. The same conservatives who were outraged by Obama's actions then should be outraged by Trump's actions now. Trump, just like Obama before him, is seeking to undermine the independence of the judicial branch because it threatens to rule against him. Judge Robart is not a "so-called judge." He was duly nominated by a U.S. president and duly confirmed by a Senate vote of 99-0. Trump may not like it, but as president he is constitutionally bound to obey federal court orders. It remains to be seen how Trump will react when he loses in higher court.[...]
Sat, 04 Feb 2017 06:00:00 -0500
In the 1997 case Printz v. United States, the U.S. Supreme Court ruled it unconstitutional for the federal government to direct state and local law enforcement officers to enforce certain provisions of the 1993 Brady Handgun Violence Prevention Act.
"The Federal Government may neither issue directives requiring the States to address particular problems," the late Justice Antonin Scalia wrote in his majority opinion, "nor command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program." In short, Printz held, the feds may not commandeer the states for federal purposes.
At the time it was decided, Printz was criticized by many liberals for being a "conservative" decision that promoted states' rights at the expense of duly enacted national reforms. In other words, they saw it as a case of the 10th Amendment run amok.
Liberals today are more likely to view Scalia's handiwork in a far more favorable light. That's because Printz now serves as perhaps the single best legal precedent in support of the constitutionality of so-called sanctuary cities—municipalities that either won't help the federal government round up and deport undocumented immigrants or otherwise refuse to participate in the enforcement of federal immigration laws.
Sanctuary cities have become a hot topic since the election of Donald Trump. Less than a week after Trump won, New York Gov. Andrew Cuomo took to Facebook with a defiant message for the incoming administration. "We won't allow a federal government that attacks immigrants to do so in our state," he declared. Chicago Mayor Rahm Emanuel was equally blunt: The Windy City, he said, "will always be a sanctuary city." Los Angeles Police Chief Charlie Beck announced that his department was "not going to work in conjunction with Homeland Security on deportation efforts. That is not our job, nor will I make it our job."
Federal authorities retain their own power to enforce national laws in those places. But the lack of meaningful local cooperation is no small hindrance. In effect, these cities are a bulwark against the far-reaching national agenda of border hawks in Washington.
If you like the sound of that, take a moment to thank Justice Scalia. As he made clear in Printz, "federal commandeering of state governments" goes against the text, structure, and history of the Constitution. Trump may not want to hear it, but "such commands are fundamentally incompatible with our system of dual sovereignty."