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Supreme Court

All articles with the "Supreme Court" tag.

Published: Mon, 22 May 2017 00:00:00 -0400

Last Build Date: Mon, 22 May 2017 20:58:30 -0400


Libertarian Legal Scholars Reject Trump Judicial Nominee's Views on 14th Amendment

Mon, 22 May 2017 09:40:00 -0400

One of President Donald Trump's federal court nominees favors an interpretation of the 14th Amendment that libertarian legal scholars have roundly rejected. Kevin Newsom, the former Alabama solicitor general recently nominated by President Trump to the U.S. Court of Appeals for the 11th Circuit, is the author of a January 2000 article in the Yale Law Journal in which he argues that the Supreme Court's 1873 decision in The Slaughter-House Cases correctly held that the Privileges or Immunities Clause of the 14th Amendment offers zero protection for economic liberty. That view is hotly contested by libertarian constitutional experts. At issue in The Slaughter-House Cases was a Louisiana statute that granted a private corporation a lucrative 25-year monopoly to operate a central slaughterhouse for the city of New Orleans. A group of local butchers challenged the law in federal court, arguing that the monopoly was a special-interest boondoggle that served no legitimate health or safety purpose and violated their fundamental rights to earn a living free from unnecessary government control. According to the butchers, the right to economic liberty was one of the privileges and immunities of U.S. citizenship recently secured against state abuse by the 1868 ratification of the 14th Amendment, which reads in part, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." From the standpoint of constitutional text and history, the butchers had a strong argument. The debates over the framing and ratification of the 14th Amendment make it clear that the provision was originally understood to protect economic liberty. Indeed, according to the principal author of the Privileges or Immunities Clause, Republican Congressman John Bingham of Ohio, "the provisions of the Constitution guaranteeing rights, privileges, and immunities to citizens of the United States" includes "the constitutional work in an honest calling and contribute by your toil in some sort to the support of yourself, to the support of your fellowmen, and to be secure in the enjoyment of the fruits of your toil." But the Supreme Court saw things differently. Adopting a posture of judicial deference, the Court ruled 5-4 in favor of the state legislature and effectively eliminated the Privileges or Immunities Clause from the Constitution. According to the majority opinion of Justice Samuel Miller, the Court had no business acting as "a perpetual censor upon all legislation of the States." To rule otherwise, he said, would "fetter and degrade the State governments." The Privileges or Immunities Clause basically offered no real protection at all, Miller insisted, except for a handful of mostly inconsequential federal rights, such as the right to access federal waterways. Slaughter-House rendered the clause toothless against virtually all state action. Because Slaughter-House was the first case in which the Supreme Court interpreted the meaning of the new 14th Amendment, the ruling had a transformative impact on the future course of American law. Its significance cannot be easily overstated. Today, a growing number of constitutional originalists, particularly those associated with the libertarian wing of the conservative legal movement, have concluded that Slaughter-House was wrong the day it was decided and therefore deserves to be confined or even overruled by the Supreme Court. For example, according to Clint Bolick, the Institute for Justice co-founder who currently serves as an Arizona Supreme Court justice, Slaughter-House is "one of the worst decisions in American law." In Bolick's view, the ruling eviscerated "one of the most sacred and central rights of Americans: economic liberty, the right to pursue a business or occupation free from arbitrary or excessive government regulation." Georgetown law professor Randy Barnett, one of the most influential originalist scholars at work today, has likewise concluded that Slaughter-House "ignored the original meaning" of the 14th Amendment. To be sure, [...]

The Birth of the Living Constitution

Mon, 15 May 2017 12:30:00 -0400

What's the proper method for interpreting the U.S. Constitution? Should it be viewed according to its original meaning? Or should the document be viewed in the light of contemporary conditions? If you answered no to the second question and yes to the third, you may be a living constitutionalist.

As Georgetown law professor Larry Solum explains in a fascinating new article at his Legal Theory Blog, "living constitutionalism is the view that the legal content of constitutional doctrine does and should change in response to changing circumstances and values." This view has been around for a long time. According to Solum, the phrase itself apparently dates back to a 1927 book titled The Living Constitution, though it was the influential progressive historian Charles Beard who first took the phrase and really ran with it. "Since most of the words and phrases dealing with the powers and the limits of government are vague and must in practice be interpreted by human beings," Beard wrote in 1936, "it follows that the Constitution as practice is a living thing."

(image) If you have any interest in U.S. legal history, Solum's article is well worth your time. But I was surprised to find that Solum made no mention of Woodrow Wilson, who must surely rank as one of the most important early theorists of living constitutionalism. For example, in his 1885 book Congressional Government, Wilson argued that the Constitution must be able to "adapt itself to the new conditions of an advancing society" or else it would be worthless to that society. "If it could not stretch itself to the measure of the times," Wilson wrote of the Constitution, it "must be thrown off and left behind, as a bygone device."

The idea of throwing off the Constitution as a bygone device proved to be extremely influential on Wilson's intellectual heirs during the New Deal period. For example, in 1935 the U.S. Supreme Court struck down the National Industrial Recovery Act on the grounds that Congress's power "to regulate commerce...among the several states" did not extend so far as to allow Congress to regulate certain economic activities that never crossed any state lines whatsoever. According to the Court's 9-0 ruling in Schechter Poultry Co. v. United States, "extraordinary conditions do not create or enlarge constitutional power."

In response to that decision, President Franklin Roosevelt took a page from Woodrow Wilson and blasted the Court for adhering to the out-of-date constitutional limits originally set by the Commerce Clause. "The country was in the horse-and-buggy age when that clause was written," Roosevelt complained. As far as FDR was concerned, the justices should be using a very different method of legal interpretation, one that would "view the interstate commerce clause in the light of present-day civilization." In short: living constitutionalism.

To make a long story short, Roosevelt lost that case but his (and Wilson's) views prevailed in the long run. For better or worse, living constitutionalism is now one of the dominant methods of legal interpretation in American law.

As Trump Reshapes the Judiciary, Libertarian-Conservative Fault Lines Are Exposed

Thu, 11 May 2017 11:30:00 -0400

This week President Donald Trump announced the names of 10 judicial nominees he is putting forward to fill vacancies on federal courts around the country. It is an impressive list, featuring both distinguished legal academics and respected state judges. What's more, Trump's picks have been widely cheered on the legal right, earning kudos from both conservatives and libertarians. Writing at the Library of Law & Liberty, John O. McGinnis also praises Trump's judicial picks and then goes on to speculate about why they have been so uniformly applauded by right-leaning legal thinkers. "Appointing judges whose ideal is to enforce the Constitution as written unites almost all strands of the political right," McGinnins notes. "For traditional conservatives, the Constitution represents an anchor against too rapid change. For libertarians, the Constitution contains valuable limitations on government power and protections of rights." But don't conservatives and libertarians also have some pretty fundamental disagreements about the meaning of the Constitution? How long can the current harmony last on the legal right? McGinnis has some interesting thoughts: [O]ne might wonder whether this union will survive the increasingly fierce debate between judicial engagement and judicial restraint among constitutional theorists on the right. Given the harshness of the words exchanged, it might seem surprising that Trump's judges receive praise from both quarters. These appointees, as fine as they are, cannot be simultaneously apostles of judicial engagement and judicial restraint. In McGinnis's view, the union will hold for now because it makes sense as a temporary political alliance. But it will start to fray as the conservative legal movement enjoys greater and greater success: Most libertarians and conservatives prefer the other's interpretive methodology as compared to the increasingly aggressive progressivism of left-liberal judicial review, because advocates of both engagement and restraint at least begin with the Constitution's original meaning. Political enemies often help bind coalition partners who are in less than full agreement. But if Trump were to replace Justices Kennedy, Breyer and Ginsburg, the theoretical debates would then gain political resonance. Political victories are never permanent in part because they make real divisions out of the theoretical fault lines that previously existed. In other words, as more "conservative" judges are appointed to the federal bench, the various factions within the conservative legal movement will increasingly jockey for position and influence, and will increasingly clash with each other over their preferred candidates for judicial vacancies. Here's an example of how the rift between conservative and libertarian legal thinking might play out on the national political stage. One of the names on Trump's famous list of 21 potential SCOTUS candidates was Judge William Pryor of the U.S. Court of Appeals for the 11th Circuit. Pryor is a strong advocate of judicial deference. In a 2007 article in the Virginia Law Review, for example, Pryor praised the Supreme Court for its landmark 1937 rulings in favor of New Deal regulations, such as National Labor Relations Board v. Jones & Laughlin Steel Corp., in which the Court adopted an expansive new interpretation of congressional power under the Commerce Clause, and West Coast Hotel Co. v. Parrish, in which the Court overturned its previous line of cases protecting the fundamental right to liberty of contract. "Not every controversy requires a judicial resolution or trumping of the will of the majority," Pryor wrote. In those pro-New Deal rulings, he insisted, "the judiciary wisely has acted with restraint." Now contrast Pryor's views with those of Texas Supreme Court Justice Don Willett, whose name also appeared on Trump's SCOTUS short-list. "When it comes to regulating the economy," Willett complained in his 2015 concurrence in Patel v. Texas Department of Licensing and Regulation, "Holmesian de[...]

Trump Announces 10 Judicial Nominations to Lower Federal Courts

Tue, 09 May 2017 12:00:00 -0400

President Donald Trump has announced the names of 10 nominees he is putting forward to fill vacancies on federal courts around the country. Much like the list he released last year of potential Supreme Court candidates, these lower-court picks are all accomplished and respected legal figures. Unlike the SCOTUS list, however, this group features not only sitting judges, but also law professors and practicing attorneys. This batch of lower-court nominees leans heavily in the direction of traditional legal conservatism. For instance, there is Michigan Supreme Court Justice Joan Larsen, who served in the Justice Department during the George W. Bush administration and who is known as a strong advocate of executive power and as a proponent of the use of presidential signing statements. Trump has nominated Larsen to the U.S. Court of Appeals for the 6th Circuit. The list also features conservative advocates of judicial deference to government regulation. The distinguished Notre Dame law professor Amy Coney Barrett, for example, who Trump has nominated to the 7th Circuit, is a sharp critic of the libertarian legal movement's calls for greater judicial protection of economic liberty. Her writings include a defense of "deferential judicial review of run-of-the-mill legislation" on the grounds that such judicial deference "is consistent with the reality that the harm inflicted by the Supreme Court's erroneous interference in the democratic process is harder to remedy than the harm inflicted by an ill-advised statute." But it's not all judicial deference all the way down. For example, Trump's nominee to the U.S. Court of Federal Claims is Damien Schiff, a senior lawyer at the Pacific Legal Foundation, a public-interest law firm that routinely defends the rights of entrepreneurs and property owners. Schiff is a skilled litigator who is perhaps best known for arguing and winning the 2012 case of Sackett v. Environmental Protection Agency before the U.S. Supreme Court. At issue in that dispute was whether the EPA's use of "administrative compliance orders," which were basically government commands to property owners, should be subject to judicial review under the Fifth Amendment's Due Process Clause. The EPA lost 9-0. In contrast to Professor Barrett, Schiff has said that the federal courts should play a more aggressive role when it comes to policing the other branches and striking down economic regulations. He has written favorably about the idea that "there will be a legitimate and prominent role for considerations of economic liberty" at the Supreme Court. Notably, this round of lower-court nominations does not address the two Texas vacancies that currently need to be filled on the U.S. Court of Appeals for the 5th Circuit. As Legal Times reported back in February, the Trump administration has been eying six candidates for those two spots. The most notable of the six is libertarian-minded Texas Supreme Court Justice Don Willett. Because Willett previously appeared on Trump's list of possible SCOTUS nominees, it would seem natural for Willett to get the nod to the 5th Circuit. But as Above the Law's David Lat has recently reported, Willett's chances may be in trouble due to the machinations of several Texas politicians, including Gov. Greg Abbott, who are backing different candidates. Apparently those machinations are still unfolding. Here is the complete list of lower-court nominees announced yesterday by the Trump administration: Notre Dame law professor Amy Coney Barrett, nominated to the U.S. Court of Appeals for the 7th Circuit. Attorney John Bush, nominated to the U.S. Court of Appeals for the 6th Circuit. Attorney Dabney L. Friedrich, nominated to the U.S. District Court for the District of Columbia. Justice Joan Larsen of the Michigan Supreme Court, nominated to the U.S. Court of Appeals for the 6th Circuit. Magistrate Judge Terry F. Moorer of the U.S. District Court for the Middle District of Alabama, nominated to be a district judge on that c[...]

Indiana Supreme Court: Cops Don't Need a Search Warrant to Get Cell Phone Location Data

Fri, 05 May 2017 14:00:00 -0400

Cell phones, the Indiana Supreme Court observed yesterday, are "double-edged swords, increasing convenience at the expense of privacy." That court then demonstrated just how expensive the costs to privacy can be.

Yesterday's ruling in Zanders v. Indiana centered on one of most pressing questions in modern Fourth Amendment law: Namely, when the police want to track somebody's movements via that person's cell phone location data, do the police need a search warrant in order to get that data from the person's cellular service provider? In this particular case, the police obtained Marcus Zander's cell site data without a warrant and used that information to trace his whereabouts during the time periods in which several armed robberies had been committed. Those cell phone records were later used against Zanders at trial.

"Zanders presumptively knew that his phone makes and receives calls by sending signals to towers," the Indiana Supreme Court said, "and that Sprint keeps records of these signals for business purposes like billing and tracking tower usage." Because Zanders had no "reasonable expectation of privacy" in such records, the Indiana Supreme Court ruled, the Fourth Amendment offers him no protection when the police obtain such records without a warrant.

The Indiana Supreme Court claimed that its hands were tied and that it had no choice but to rule in favor of the police on account of several U.S. Supreme Court precedents. In Katz v. United States (1967), for example, the U.S. Supreme Court held that "what a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection." Even more significantly, in Smith v. Maryland (1979), the Court ruled that "a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties."

Fourth Amendment advocates are increasingly urging the U.S. Supreme Court to reconsider those precedents in the digital age. As I noted in a column earlier this week, five different petitions are pending before SCOTUS right now that ask the justices to step in and review lower court rulings that have allowed warrantless police searches of cell site data. Those five cases, as I explained, all turn on "the conflict between the Fourth Amendment right to be free from unreasonable search and seizure and the third-party doctrine's vast grant of warrantless search and seizure powers to law enforcement agencies." We may found out as early as next week if the Court agrees to take one or more of those cases.

It all boils down to this: How many Fourth Amendment protections do we forfeit when we use a cell phone? That's the question that the U.S. Supreme Court is eventually going to have to face.

Police Don’t Need a Search Warrant to Use Your Cell Phone Records to Track Your Location. Will SCOTUS Do Something About it?

Thu, 04 May 2017 09:29:00 -0400

In 1979 the U.S. Supreme Court ruled that law enforcement officials do not need a search warrant in order to obtain a suspect's telephone call records from that suspect's telephone company. According to the Court's opinion in Smith v. Maryland, "a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties." Also known as the third-party doctrine, this rule raises some significant questions in the age of the smart phone. After all, today's wireless companies don't just have a record of the numbers you dialed (or texted), they also have a record of your location when you dialed (or texted) them. Is that sort of personal information entitled to any meaningful protection under the Fourth Amendment? The Supreme Court now has the opportunity to provide some fresh answers. On May 11 the justices will meet in their next private conference to consider the latest batch of cases up for possible review. Among those petitions are five cases that effectively ask the Court to give the third-party doctrine a second look. A definitive ruling by the Court against the government in any one of those five cases could reshape the landscape of Fourth Amendment law. One of the five petitions deals with a case called Carpenter v. United States, a matter in which the FBI obtained, without a search warrant, the cell site data of several alleged armed robbers. Put differently, the authorities obtained the records of the various cell phone towers that handled the calls made by the suspects. The FBI then used that information to track the suspects' movements and pinpoint their locations during the times in which the robberies were committed. According to the U.S. Court of Appeals for the 6th Circuit, which ruled in favor of the government's actions, "although the content of personal communications is private, the information necessary to get those communications from point A to point B is not." And "cell-site data," that court said, just "like mailing addresses, phone numbers, and IP addresses [are] information that facilitate personal communications, rather than part of the content of those communications themselves. The government's collection of business records containing these data therefore is not a search." The petition in Graham v. United States presents a similar scenario. Here the government also obtained the cell site data of an alleged armed robber without first obtaining a search warrant. But the government initially lost this case before a three-judge panel of the U.S. Court of Appeals for the 4th Circuit, which found the government's actions to be unconstitutional under the Fourth Amendment. However, a full panel of 4th Circuit judges later reversed that decision. "The question before us," the full 4th Circuit panel said, "is whether the government invades an individual's reasonable expectation of privacy when it obtains, from a third party, the third party's records, which permit the government to deduce location information." Unfortunately for the suspect, the ruling concluded, "under the third-party doctrine, an individual can claim 'no legitimate expectation of privacy' in information that he has voluntarily turned over to a third party." That suspect, Aaron Graham, is now urging the Supreme Court to overturn the 4th Circuit's ruling against him on the grounds that "mobile phone technology, including the use of passively generated [cell site location information], has outstripped the reasoning of Smith." The three other related petitions now before SCOTUS proceed along similar lines. "Does the Fourth Amendment require law enforcement to obtain a warrant to acquire [cell site location information]?" asks Jordan v. United States. Did the U.S. Court of Appeals for the 7th Circuit get it wrong when it held "that individuals have no reasonable expectation of privacy in information held by a third party," queries Caira v. United States. Must law enforcement[...]

Federal Court to Government Regulators: The First Amendment Protects Tattoo Shops

Tue, 02 May 2017 11:10:00 -0400

The tattoo trade has won another notable legal victory in its long-running battle against unreasonable government regulation.

In late March a three-judge panel of the U.S. Court of Appeals for the 9th Circuit ruled unanimously in favor of California tattoo artist James Real, who is currently mounting a constitutional challenge to the city of Long Beach's anti-tattoo shop zoning law and other prohibitory regulations. "We have held that tattooing is 'purely expressive activity fully protected by the First Amendment,'" the 9th Circuit bluntly reminded the federal district court, which had previously dismissed Real's complaint. "This includes '[t]he tattoo itself, the process of tattooing, and even the business of tattooing.'" Translation: Get your act together, district court.

This is a key win for Real, who had suffered a massive early defeat when the federal district court held that he lacked standing to challenge the city's zoning law as unconstitutional on its face and that he lacked standing to challenge the law as applied to him. The district court also held that the city's actions cannot be viewed as violations of Real's First Amendment rights.

The 9th Circuit reversed the district court on all counts. Its decision in Real v. City of Long Beach orders the district court to rehear Real's case and "to try Real's facial and as-applied First Amendment claims, on the grounds that the City's zoning ordinances operate as unlawful prior restraints on speech and are unreasonable time, place, or manner restrictions on speech." I suspect Real is going to fare a little better in district court the second time around.

(image) As I previously reported in Reason's June 2016 issue, tattoo artists are increasingly taking the government to court and winning on the merits:

Over the past half-century, tattoo artists have been subjected to all manner of overreaching, ill-fitting, and just plain nonsensical government controls. They've been hassled by clueless health departments, shut down by moralizing zoning boards, and outlawed entirely by busybody city councils and state legislatures. But tattoo artists can be a prickly bunch, and increasingly they're opting to fight back. In recent years tattooists around the country have launched a series of civil liberties lawsuits designed to put the government's regulatory malfeasance on trial. And while the ink-masters aren't winning every case, their legal attacks are finally starting to turn the tide.

James Real's preliminary victory at the 9th Circuit is further evidence that the tide is turning.

Don't Blame Trump for Obama's Position on Losing Citizenship Over Fibs

Tue, 02 May 2017 09:59:00 -0400

Yale philosophy professor Jason Stanley is rightly alarmed by the federal government's position that naturalized Americans can lose their citizenship based on trivial misstatements to the Department of Homeland Security. But Stanley wrongly portrays that position, which was staked out by the Obama administration, as a product of Donald Trump's special hostility to immigrants. The mistake illustrates the sadly familiar tendency to frame what should be critiques of government power as complaints about particular parties or politicians. Writing in The New York Times, Stanley exaggerates the differences between Trump's immigration policies and those of his predecessor, who was no slouch when it came to "exiling" people (as Stanley describes it). Still, Stanley correctly notes that Trump's immigration enforcement guidelines have expanded the category of "criminals" given priority for deportation to include pretty much anyone living in the United States without the government's permission. Where Stanley goes wrong is by tying that shift to a case the Supreme Court heard last Wednesday: The administration's hard line on the standard for criminalization has gone so far as to alarm several members of the Supreme Court, as demonstrated during an argument before the Court last week (Maslenjak v. United States), in which a Justice Department lawyer argued that, as The Times reported, "the government may revoke the citizenship of Americans who made even trivial misstatements in their naturalization proceedings," including not disclosing a criminal offense of any kind, even if there was no arrest. To test the severity of that position, Chief Justice John G. Roberts, Jr., confessed to a crime—driving 60 miles an hour in a 55-mile-an-hour zone many years ago without being caught. He then asked if a person who had not disclosed such an incident in his citizenship application could have his citizenship revoked. The lawyer answered, yes. There was "indignation and incredulity" expressed by the members of the Court. Justice Anthony M. Kennedy told the lawyer, "Your argument is demeaning the priceless value of citizenship." Roberts put it simply. If the administration has its way, he said, "the government will have the opportunity to denaturalize anyone they want." The issue in Maslenjak, as I explained last week, is whether you can "procure" citizenship "contrary to law," an offense that triggers automatic denaturalization as well as up to 25 years in prison, by making a false statement that has no bearing on your application. According to the U.S. Court of Appeals for the 6th Circuit, you can. The Obama administration, in a November 23 brief urging the Supreme Court to let that decision stand by decining to hear an appeal, said the 6th Circuit got it right. The offense of "knowingly procuring naturalization contrary to law," said Acting Solicitor General Ian Heath Gershengorn, "does not require proof of materiality." That means even an irrelevant fib—such as lying about your weight, as the government's lawyer suggested during oral argument—can cost someone her citizenship. It is hardly surprising that the Obama administration took that position, since the Justice Department made the same argument at trial and before the 6th Circuit. Federal prosecutors tend to prefer legal interpretations that make their job easier, no matter who happens to be sitting in the White House, and government officials, regardless of party, are inclined to read the law in a way that enhances their own authority. Those tendencies are a strong argument for clearer statutes and for erring on the side of giving the government less power to upend people's lives. They are not an argument against Donald Trump per se. Don't we have enough of those?[...]

Can You Lose Your Citizenship by Lying About Your Weight?

Thu, 27 Apr 2017 10:31:00 -0400

If you want to become a citizen of the United States, you have to answer a lot of questions, some of which are very broad and many of which seek potentially embarrassing information. In a case the Supreme Court heard yesterday, the U.S. government takes the position that a false answer to any of those questions, no matter how trivial or irrelevant the subject, is enough to strip you of your citizenship years after you were naturalized. That argument encountered a lot of resistance from the Court and prompted a startling confession from Chief Justice John Roberts. "Some time ago," Roberts told Assistant to the Solicitor General Robert Parker, "outside the statute of limitations, I drove 60 miles an hour in a 55-mile-an-hour zone....I was not arrested." Had Roberts done that as a green-card holder seeking citizenship, he would have been obligated to check the "yes" box next to Question 22 in Part 12 of his application for naturalization: "Have you EVER committed, assisted in committing, or attempted to commit a crime or offense for which you were NOT arrested?" According to the government, checking the "no" box could have life-altering consequences. "You say that if I answer that question no," Roberts said, "20 years after I was naturalized as a citizen, you can knock on my door and say, 'Guess what, you're not an American citizen after all.'" Parker confirmed that was indeed what he was saying. "Oh, come on," the chief justice replied. At the center of the case, Maslenjak v. United States, is the meaning of 18 USC 1425, which makes it a felony to "procure" citizenship "contrary to law." In addition to a prison term of up to 25 years, a conviction under that statute triggers automatic loss of citizenship. Divna Maslenjak, an ethnic Serb from Bosnia who became a citizen in 2007, was convicted of violating 18 USC 1425 because she lied about her husband's military service while seeking refugee status in 1998 and did not acknowledge the lie when she applied for citizenship. It is a matter of dispute whether that lie, which violated another law making it a crime for a naturalization applicant to knowingly make a false statement under oath, actually helped Maslenjak become a citizen. But during her trial the prosecution argued that it did not matter. The judge agreed, telling jurors they could convict Maslenjak of illegally procuring citizenship "even if you find that a false statement did not influence the decision to approve the defendant's naturalization." Last year the U.S. Court of Appeals for the 6th Circuit approved that interpretation of the law, parting company with four other federal appeals courts. Yesterday Parker urged the Supreme Court to uphold the 6th Circuit's decision. "What Congress was concerned here with is not what people lied about," he said. "Rather, it was the fact that they lied." Several justices seemed skeptical. "How can an immaterial statement procure naturalization?" asked Ruth Bader Ginsburg. Elena Kagan said it "seems quite natural" to require some causal connection between the false statement and obtaining citizenship. Samuel Alito suggested it was rather odd to say that someone "procured X contrary to law, but the thing that she did had no potential to help her get that thing." Several justices also were dismayed by the sweeping implications of the government's position. Stephen Breyer said it is "rather surprising that the government of the United States thinks that Congress is interpreting this statute and wanted it interpreted in a way that would throw into doubt the citizenship of vast percentages of all naturalized citizens." Noting that the questions posed to would-be citizens "are unbelievably broad," Breyer added his own hypothetical to Roberts' speeding example: "I walked into the immigration hearing with a pocketknife in a government building, a Boy Scout knife I carry [...]

Federal Judge Blocks Trump Administration from Enforcing Executive Order on Sanctuary Cities

Tue, 25 Apr 2017 17:20:00 -0400

(image) Today Judge William Orrick of the U.S. District Court for the Northern District of California issued a nationwide preliminary injunction that blocks the Trump administration from enforcing President Donald Trump's executive order denying federal funds to so-called sanctuary cities. "The confusion caused by [the executive order's] facially unconstitutional directives and its coercive effects weigh heavily against leaving it in place," Judge Orrick wrote. "The balance of harms weighs in favor of an injunction."

Today's ruling came in the matter of County of Santa Clara v. Trump and in the related matter of City and County of San Francisco v. Trump, a pair of constitutional challenges filed against the president's executive order. In brief, Santa Clara and San Francisco argue that the Trump administration's threat to withhold federal funding from sanctuary cities violates multiple constitutional provisions, including the separation of powers, the Spending Clause, and the 10th Amendment. They asked for the order to be put on hold while their legal challenges proceed in federal court.

"To succeed in their motions," Judge Orrick wrote today, "the Counties must show that they are likely to face immediate irreparable harm absent an injunction, that they are likely to succeed on the merits, and that the balance of harms and public interest weighs in their favor. The Counties have met this burden." The Trump administration is now blocked from enforcing the executive order anywhere in the country while the constitutional challenges move forward.

The Trump administration may not want to hear it, but sanctuary cities are protected by both the Constitution and by Supreme Court precedent. As Justice Antonin Scalia observed in his 2007 majority opinion in Printz v. United States, "the Federal Government may neither issue directives requiring the States to address particular problems, nor command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program." Furthermore, as the Supreme Court held in National Federation of Independent Business v. Sebelius (2012), the threat to withhold existing federal funds from a state in order to coerce that state into doing the bidding of the federal government is an unconstitutional act of "economic dragooning." Finally, it should be noted that the federal spending power is located in Article I of the Constitution, among the enumerated powers of Congress; it is not located among the enumerated powers of the president in Article II.

Judge Orrick's opinion in County of Santa Clara v. Trump is available here.

Is This the Supreme Court's Next Big Second Amendment Case?

Tue, 25 Apr 2017 11:10:00 -0400

Does the Second Amendment right to keep and bear arms extend outside the home? Does it cover the right to carry concealed firearms in public? An important case now pending before the U.S. Supreme Court for possible review may provide definitive legal answers. At issue in Peruta v. California is a state law that says conceal-carry permits will only be issued to those persons who have demonstrated to the satisfaction of their local county sheriff that they have a "good cause" for carrying a concealed firearm in public. What counts as a "good cause?" In the words of one San Diego official, "one's personal safety is not considered good cause." In effect, the local sheriff has vast discretion to pick and choose who gets a permit and who doesn't. Because the guidelines are unclear there is a severe risk of arbitrary enforcement. As one previous court ruling on the matter observed, "in California the only way that the typical responsible, law-abiding citizen can carry a weapon in public for the lawful purpose of self-defense is with a concealed-carry permit. And, in San Diego County, that option has been taken off the table." A constitutional challenge to this law inevitably followed. But that challenge suffered a major defeat in June 2016 when San Diego's "good cause" requirement was upheld by a divided 11-judge panel of the U.S. Court of Appeals for the 9th Circuit on the grounds that the Second Amendment offers no protection for gun owners in this area. "Because the Second Amendment does not protect in any degree the right to carry concealed firearms in public," the 9th Circuit majority said, "any prohibition or restriction a state may choose to impose on concealed carry—including a requirement of 'good cause,' however defined—is necessarily allowed by the Amendment." In January 2017 Edward Peruta and his fellow petitioners asked the U.S. Supreme Court to step in and overturn that 9th Circuit ruling. According to the Court's docket, their petition has now been considered by the justices in private conferences held on March 24, on March 31, on April 13, and on April 21, but no decision has yet been reached. This Friday, April 28, is the next private conference on the Court's calendar, and the justices are scheduled to consider the Peruta petition once again. There are good reasons for the Court to take the case. While the 9th Circuit has endorsed a narrow interpretation of the Second Amendment's reach outside the home, other federal circuits have arrived at a different interpretation. In its 2012 decision in Moore v. Madigan, for example, the U.S. Court of Appeals for the 7th Circuit struck down Illinois' statewide ban on carrying arms in public on the grounds that it violated the Second Amendment. "One doesn't need to be a historian to realize that a right to keep and bear arms in the eighteenth century could not rationally have been limited to the home," the 7th Circuit held. That kind of circuit split is usually enough to get the Supreme Court's attention. The justices may also be interested in settling a debate about federalism and the role of the federal courts that is lurking in the background of this case. For example, the gun control side insists that state and local officials are best positioned to balance the rights of gun owners against the specific local needs for more stringent firearms regulations. According to this view, federal judges should defer to these sorts of state and local decisions. By contrast, the gun rights side insists that the idea of constitutional liberty is turned on its head when a provision of the Bill of Rights is restricted in one part of the country and respected in another. This view urges the federal courts to consistently enforce the Second Amendment nationwide. We may find out as soon as this Friday if the Supre[...]

You Won’t Read a Full Accounting of America’s Use of Waterboarding and Torture Anytime Soon

Mon, 24 Apr 2017 14:05:00 -0400

A push to force the federal government to publicly release the full contents of a Senate report on the secret torture and detention of terror suspects ended quietly this morning with a simple rebuff by the Supreme Court. The Supreme Court declined to consider a lawsuit by the American Civil Liberties Union (ACLU). The ACLU had been suing under the Freedom of Information Act (FOIA) to force the federal government to release the contents of a 6,000-page report from the Senate. The full report detailed not just the terrible treatment—waterboarding and other forms of torture—of people suspected (sometimes incorrectly) of terrorism overseas; it also argued that the violent interrogations failed to get useful information and that the CIA lied about the program to higher-ups in government to conceal what they were doing. An executive summary—clocking in at more than 500 pages—was finally declassified and made public in heavily redacted form back in 2014 after a long fight over it. But the full report has been secreted away to the point that the Department of Justice has actually ordered federal agencies to not even open and read the report, and Sen. Richard Burr (R-N.C.) has attempted to get federal agencies to give their copies of the report back to the Senate. The ACLU's lawsuit is partly why. In defending against the ACLU's lawsuit, the federal government argued that the full torture report was a congressional record and therefore not subject to FOIA. The ACLU countered that passing the report along to agencies in the executive branch meant otherwise. Unfortunately, courts have up until now found for the government. This morning the Supreme Court denied certification for the ACLU's lawsuit, so their push ends here with a loss for transparency. It is the end of this particular legal fight, Hina Shamsi, director of the ACLU's National Security Project, tells Reason. "It is a very disappointing end because we think that the lessons of the full report are really necessary to learn." Nevertheless, Shamsi felt as though the fight itself hasn't been a total loss. The outrage that followed the disclosure of waterboarding and other harsh interrogation techniques led military and executive branch leaders to acknowledge the legal limitations to what they were permitted to do to prisoners of the war on terror, and the military has promised to use only interrogation techniques listed in the Army Field Manuals, meaning no waterboarding. "Opposition [to torture] at the highest levels is going to be critically important," Shamsi said. That's particularly true because President Donald Trump campaigned fully in support of waterboarding and even harsher forms of torture as tools to fight the Islamic State. The Supreme Court declining to hear the case means the legal fight is over, but that doesn't necessarily mean that the chance Americans will ever get to see the full report is completely gone. The president has the authority to declassify the full report's contents, but that seems extremely unlikely given Trump's positions. Before leaving office, President Barack Obama managed to save a copy in his presidential archive. So even if the Trump administration has all the copies of the full report destroyed, there's still one out there they can't touch. When the executive report was initially released to the public, we made note of the outrageous incidents described in there. But while those violent incidents described in the report got the most media attention, huge chunks of the summary were devoted to whether proper procedures were followed or not and whether the torture actually got results or not. As I noted at the time, you could switch torture out and replace it with any other massive bureaucratic process the federal government put toge[...]

Sonia Sotomayor Says SCOTUS Favors Police Officers Over Alleged Victims of Police Misconduct

Mon, 24 Apr 2017 11:40:00 -0400

(image) Today Justice Sonia Sotomayor accused the Supreme Court of enacting a double-standard in qualified immunity cases that favors police officers over alleged victims of police misconduct.

Sotomayor's complaint came in the form of a dissent she filed after the Supreme Court refused to hear the matter of Salazar-Limon v. City of Houston, a case in which a police officer who shot an unarmed suspect in the back was awarded qualified immunity without first going to trial. According to the officer involved in the shooting, the suspect appeared to reach for a gun in his waistband. According to the suspect, Ricardo Salazar-Limon, he was walking away from the officer when he was shot.

The legal question is whether the federal district court erred when it issued a summary judgment in favor of the officer. A summary judgment may occur only when there are no issues of material fact in dispute, thus clearing the way for the presiding judge to reach a decision on the law without first convening a jury trial to sort out matters of fact.

According to the district judge in this case, there were no facts in dispute about the encounter between the officer and Salazar-Limon. On appeal, the U.S. Court of Appeals for the 5th Circuit upheld that judgment. Today the Supreme Court declined to review those lower court rulings.

The Supreme Court's refusal to act today is what prompted Justice Sotomayor to dissent. As she explained,

Given that this case turns in large part on what Salazar-Limon did just before he was shot, it should be obvious that the parties' competing accounts of the event preclude the entry of summary judgment for [Officer] Thompson. Thompson attested in a deposition that he fired his gun only after he saw Salazar-Limon turn and "ma[k]e [a] motion towards his waistband area." Salazar-Limon, by contrast, attested that Thompson fired either "immediately" or "seconds" after telling Salazar-Limon to stop—and in any case before Salazar-Limon turned toward him. These accounts flatly contradict each other. On the one, Salazar-Limon provoked the use of force by turning and raising his hands toward his waistband. On the other, Thompson shot without being provoked. It is not for a judge to resolve these "differing versions of the truth" on summary judgment, that question is for a jury to decide at trial. [Citations omitted.]

To make matters worse, Sotomayor wrote in conclusion, the Court's inaction today is just the latest example of a troubling pro-police pattern throughout this area of the law. "We have not hesitated to summarily reverse courts for wrongly denying officers the protection of qualified immunity in cases involving the use of force," Sotomayor wrote. "But we rarely intervene where courts wrongly afford officers the benefit of qualified immunity in these same cases."

Justice Sotomayor's dissent from denial of certiorari in Salazar-Limon v. City of Houston is available here.

SCOTUS Says States Have No Right to Money Taken Based on Overturned Convictions

Fri, 21 Apr 2017 10:15:00 -0400

This week the Supreme Court ruled that Colorado has no right to keep fines, fees, court costs, and restitution it extracts from criminal defendants whose convictions are later reversed. By forcing people to prove their innocence before they can get back property that is rightly theirs, the Court said, Colorado has been violating the 14th Amendment's guarantee of due process. The Institute for Justice, which filed a brief in the case emphasizing that the presumption of innocence is an essential aspect of due process, makes a compelling argument that civil asset forfeiture routinely violates that principle. The Court's decision in Nelson v. Colorado, which was joined by seven justices (Clarence Thomas dissented, and Neil Gorsuch joined the Court too recently to participate), came in response to challenges by Shannon Nelson and Louis Madden, who tried to get back money the state took from them based on convictions that were overturned. Nelson, who in 2006 was convicted of two felonies and three misdemeanors based on allegations that she had abused her four children, was sentenced to 20 years in prison and ordered to pay $8,193 in court costs, fees, and restitution, $702 of which was taken from her inmate account before she won a new trial and was acquitted. Madden, who in 2005 was convicted of two felonies based on allegations that he had patronized an underaged prostitute, received an indeterminate prison sentence and was ordered to pay $4,413 in costs, fees, and restitution, $1,978 of which was collected before his convictions were reversed on appeal and the state decided not to prosecute him again. Nelson and Madden got a sympathetic hearing at the Colorado Court of Appeals, which concluded that they had a right to refunds. But the Colorado Supreme Court disagreed, saying they could get their money back only if they followed the process prescribed by Colorado's Compensation for Certain Exonerated Persons statute, a.k.a. the Exoneration Act. That law requires exonerated defendants seeking compensation to file a lawsuit and prove their innocence by clear and convincing evidence. That procedure is prohibitively expensive for people seeking the return of modest sums, and it is no help at all for people convicted of misdemeanors, which are not covered by the law. More fundamentally, the U.S. Supreme Court says in an opinion by Justice Ruth Bader Ginsburg, the Exoneration Act is inappropriate for people who are seeking not compensation for wrongful convictions but the return of money the state took based on legal determinations that are no longer valid. "Colorado may not retain funds taken from Nelson and Madden solely because of their now-invalidated convictions, for Colorado may not presume a person, adjudged guilty of no crime, nonetheless guilty enough for monetary exactions," Ginsburg writes. "To get their money back, defendants should not be saddled with any proof burden. Instead...they are entitled to be presumed innocent." That was true before Nelson and Madden were tried, Ginsburg observes, and it is true again now that their convictions have been nullified. The parallels with civil asset forfeiture are pretty clear. In both cases, the government takes someone's property based on allegations of criminal activity, and in both cases the owners are forced to prove their innocence if they want to get their property back. Nelson v. Colorado "upholds the fundamental principle that Americans are entitled to be presumed innocent until proven otherwise," says Institute for Justice attorney Robert Everett Johnson. "The Court expressly rejected Colorado's argument that the 'presumption of innocence applies only at criminal trials,' explaining that the government 'may not presume a[...]

Federal Judge Says Judicial Deference to Executive Branch Agencies Is 'Judicial Abdication'

Thu, 20 Apr 2017 10:52:00 -0400

Newly appointed Supreme Court Justice Neil Gorsuch is an outspoken foe of Chevron deference, the legal doctrine that tells federal judges to tip the scales in favor of executive branch agencies when those agencies have offered a "reasonable" interpretation of an "ambiguous" federal statute. "Under any conception of our separation of powers," Gorsuch has written, "I would have thought powerful and centralized authorities like today's administrative agencies would have warranted less deference from other branches, not more." An important case decided last week by the U.S. Court of Appeals for the District of Columbia Circuit reveals that Gorsuch has a key anti-Chevron ally on that court. At issue in Waterkeeper Alliance v. Environmental Protection Agency was whether the EPA exceeded its authority under federal law while attempting to regulate animal waste produced by farms. According to the unanimous D.C. Circuit opinion written by Senior Judge Stephen Williams, "the EPA's action here can't be justified." Among the judges who joined that unanimous opinion was Janice Rogers Brown, a Republican-appointee who has previously exhibited certain libertarian tendencies in cases dealing with such issues as economic liberty, police misconduct, and Amtrak. Those tendencies were on display once again last week. "I join in the Panel Opinion because '[the EPA's approach] ran afoul of the underlying statutes (and was therefore outside the EPA's delegated authority),'" Judge Brown declared. But she also wrote a separate concurrence, in which she went further, rejecting efforts by the EPA and others to shoehorn lawless executive branch behavior in via the already too lenient standard set forth by the Chevron doctrine. "If a court could purport fealty to Chevron while subjugating statutory clarity to agency 'reasonableness,'" she wrote, "textualism will be trivialized." Brown concluded her concurrence by observing that "an Article III renaissance is emerging against the judicial abdication performed in Chevron's name." Article III is that part of the U.S. Constitution that grants "the judicial power" to the courts. In other words, what Brown is saying is that certain federal judges are starting to get fed up with judicial deference to the executive branch and starting to wonder whether the time has come to perform their judicial duty to "say what the law is," as Chief Justice John Marshall once put it. As evidence of this Article III renaissance, Brown pointed to none other than Neil Gorsuch, quoting from then-Judge Gorsuch's 10th Circuit opinion in Guiterrez-Brizuela v. Lynch, in which Gorsuch wrote, "whatever the agency may be doing under Chevron, the problem remains that courts are not fulfilling their duty to interpret the law." To be sure, Chevron is at no immediate risk of being overturned. But if Judge Brown and Justice Gorsuch ultimately have their way, the doctrine's days will be numbered.[...]