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Supreme Court

All articles with the "Supreme Court" tag.

Published: Tue, 21 Nov 2017 00:00:00 -0500

Last Build Date: Tue, 21 Nov 2017 16:54:44 -0500


Why Trump Deserves to Lose in Federal Court on Sanctuary Cities

Tue, 21 Nov 2017 16:45:00 -0500

(image) A federal judge has declared President Donald Trump's executive order denying federal funding to so-called sanctuary cities to be unconstitutional. The judge got it right.

In his opinion this week in County of Santa Clara v. Trump, and the related case of City and County of San Francisco v. Trump, Judge William Orrick of the U.S. District Court for the Northern District of California found the president's order to be in violation of the 10th Amendment, the Fifth Amendment, and the constitutional separation of powers.

"The Constitution vests the spending powers in Congress, not the President, so the Executive Order cannot constitutionally place new conditions on federal funds," Judge Orrick wrote. "Further, the Tenth Amendment requires that conditions on federal funds be unambiguous and timely made; that they bear some relation to the funds at issue; and that they not be unduly coercive. Federal funding that bears no meaningful relationship to immigration enforcement cannot be threatened merely because a jurisdiction chooses an immigration enforcement strategy of which the President disapproves."

I've said it before and I'll say it again: Sanctuary cities are protected by both the Constitution and Supreme Court precedent. For starters, as the late Justice Antonin Scalia explained in Printz v. United States (2007), "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." Put simply, Trump's executive order flunks the 10th Amendment test that Scalia spelled out in Printz.

Trump's executive order also flunks the test set forth by the Supreme Court in National Federation of Independent Business v. Sebelius (2012), which held that the federal government may not threaten to withhold existing funding from a state in an attempt to coerce that state into doing the feds' bidding. Such an effort would be an unconstitutional act of "economic dragooning."

Finally, Trump's executive order flunks the text of the Constitution itself, which, as Judge Orrick points out, "vests the spending powers in Congress, not the President." The limited and enumerated powers of the executive branch are spelled out in Article II; the federal spending power is located in Article I.

Related: Will Liberals Learn to Love the 10th Amendment?

The Senate Democrats' Pathetic Attack on Justice Don Willett

Thu, 16 Nov 2017 09:15:00 -0500

The Senate Judiciary Committee on Wednesday held confirmation hearings on Don Willett, one of President Donald Trump's nominees to the U.S. Court of Appeals for the 5th Circuit. Willett is an outspoken jurist who has served as a justice on the Texas Supreme Court since 2005 and who has written a number of opinions on highly contentious legal issues. So naturally I expected Willett to be grilled by Senate Democrats about those rulings and the thorny legal topics they address. Call me naive, but I was genuinely looking forward to some meaningful interactions between Willett and his Democratic interrogators. But rather than querying Willett about his court opinions or his judicial philosophy, the Democrats beclowned themselves, wasting valuable Q&A time on a series of weak and frankly embarrassing questions about some jokes that Willett told on Twitter. Sen. Patrick Leahy (D-Vt.) actually asked Willett how he could claim to respect Supreme Court precedent when Willett had "equated [the] constitutional right to same-sex marriage with a constitutional right to marry bacon." Leahy then cited a goofy tweet as evidence of Willett's "attack" on SCOTUS precedent. It went downhill from there. One particularly low point came when Sen. Al Franken (D-Minn.), a former professional comedian, repeatedly insisted that one of Willett's obvious twitter jokes was not actually a joke. It was pathetic. Ironically, the one senator who asked a genuinely challenging and even treacherous question for Willett was Louisiana Republican John Neely Kennedy. "How should a federal judge," he asked, "go about deciding when a right is fundamental in a case of first impression?" Kennedy was asking Willett to weigh in on a very antagonistic debate. Here's the short version of it: The federal courts don't treat all rights equally. Some rights, such as those spelled out in the Bill of Rights, are deemed to be "fundamental" and are therefore given strenuous judicial protection. But what about those rights that are not explicitly spelled out in the Constitution? The right to privacy, for example, is not listed anywhere in the document, yet the Supreme Court has recognized it as fundamental and repeatedly safeguarded it from various forms of government regulation. According to some conservatives, such as the late Robert Bork, the Court should not have done so because the Court has no business protecting unenumerated rights in the first place. When "the Constitution does not speak," as Bork put it, we are "all at the mercy of legislative majorities." In other words, Kennedy asked Willett a pretty hot-button question about both the meaning of the Constitution and the role of a judge in interpreting it. He also basically asked Willett where he stood on a topic that divides the members of the conservative legal movement. Initially, Willett tried a little side-step in his answer. "It is exceedingly rare that a case of constitutional first impression ever lands on a court's doorstep," he replied. But Kennedy would not be put off so easily. "I think those cases are not un-rare at all," he retorted. "I mean, litigants all the time assert a constitutional right. And all I'm saying is, to have heightened protection, you have to fit it into the slot of fundamental right. I'm just asking you how in a case of first impression you would make that decision." This time Willett gave a more direct response. "Certainly, you begin with the text and the structure and the history of the Constitution," he said. Unfortunately, the Kennedy-Willett exchange ended there due to time constraints. The bigger question lurking in the background about unwritten rights remained unaddressed. Had any of the Democrats bothered to follow up on it, instead of just prattling on about Twitter, Willett might have gotten more specific. But that sort of substantive constitutional conversation was not to be. If Wednesday's hearing represents the Democrats' best effort at casting doubt on his nomination, Don Willett has nothing to worry about from that side of the aisle.[...]

Are You Allowed to Vote While Wearing a 'Don't Tread on Me' T-Shirt? SCOTUS Will Soon Decide

Tue, 14 Nov 2017 12:50:00 -0500

Does the Constitution permit state governments to create "speech-free zones" that ban political attire within 100 feet of a polling place on election day, even if that attire does not mention a candidate, a campaign, or even a political party? Or does the First Amendment protect the citizenry's right to wear such attire while casting a ballot? The U.S. Supreme Court will tackle those questions later this term when it hears oral arguments in Minnesota Voters Alliance v. Mansky. The justices agreed to take up the case yesterday. At issue is a Minnesota statute declaring that "a political badge, political button, or other political insignia may not be worn at or about the polling place on primary or election day." The ban applies to all apparel "designed to influence and impact voting" or "promoting a group with recognizable political views." Andrew Cilek, the executive director of the conservative group Minnesota Voters Alliance, ran afoul of the law in 2010 when he tried to vote wearing a t-shirt adorned with an image of the Gadsen Flag, the phrase "Don't Tread on Me," and a Tea Party Patriots logo. Cilek was also wearing a "Please I.D. Me" button from the conservative group Election Integrity Watch. Cilek and the Minnesota Voters Alliance, represented by the lawyers at the Pacific Legal Foundation, are now asking the Supreme Court to strike down the Minnesota law. "This Court has never countenanced speech-free zones at polling places," they argue in their briefing. "Rather, it has held that bans on First Amendment activity are unconstitutional, regardless of the forum." On the opposite side of the case is Joe Mansky, the elections manager for Ramsey County, Minnesota, along with several other state officials. They maintain that the law "is not overbroad but a reasonable and viewpoint neutral regulation of speech in the nonpublic forum of a polling place." The Supreme Court's key precedent in this area of the law is a 1992 decision known as Burson v. Freeman, in which the Court upheld the constitutionality of a Tennessee statute that created "campaign-free zones" within 100 feet of polling places on election day. That law prohibited "campaign posters, signs or other campaign materials, distribution of campaign materials, and solicitation of votes for or against any person or political party or position on a question." Mansky and his fellow state officials insist that Burson clearly cuts in their favor. But there is an important difference between that precedent and the present case. Burson dealt only with campaign-related speech. The Minnesota law goes much further, encompassing the far wider category of political speech, including speech that makes no mention of any campaign, candidate, initiative, referendum, or party. In other words, it's one thing to ban a "Vote for Bernie" shirt from the polling place; it's another thing to ban an "Occupy Wall Street" shirt. And that is precisely what is at issue here. The same reasoning that would allow Minnesota to prohibit "Don't Tread on Me" shirts from polling places on election day would also allow the state to prohibit AFL-CIO buttons or NAACP hats, to name just a few of the sort of everyday items that Americans wear in order to express their political beliefs or identities. In an amicus brief filed in support of the Minnesota Voters Alliance, the Cato Institute, Rutherford Institute, Individual Rights Foundation, and Reason Foundation (the nonprofit that publishes this website) argue that the law's extensive reach is a fatal flaw worthy of judicial rectification. "When a statute is written so generally that it could plausibly be enforced against vast swaths of speech," the brief notes, "this Court has applied the doctrine of overbreadth, invalidating the statute for placing too much discretion in the hands of government agents. Minnesota's law, which simply bans 'political' insignia, suffers from precisely this constitutional defect." We'll find out later this term where the justices stand on the bedrock First Amendment q[...]

Supreme Court to Weigh Rules for Anti-Abortion Pregnancy Centers in California

Tue, 14 Nov 2017 11:45:00 -0500

(image) The U.S. Supreme Court has agreed to hear a case involving California's regulations for "crisis pregnancy centers." These generally religious, always anti-abortion centers have come under fire in the past for misrepresenting themselves as comprehensive reproductive health clinics while providing little in the way of medical services. But in trying to stop some centers from fraudulent advertising, the state of California passed legislation that may violate their First Amendment rights.

According to NARAL ProChoice America, California has around 170 crisis pregnancy centers, with around 40 percent licensed as medical clinics.

Under a law that took effect in January 2016, California pregnancy centers are required to disclose whether they are licensed medical providers or merely offer ancillary services (such as counseling or a clothing bank) to pregnant women. That part isn't controversial. But the law also requires crisis pregnancy centers that are licensed health clinics to notify patients about state programs that can help low-income women pay for prenatal care, contraception...and abortions. Clinics that fail to post the required state notice face civil penalties.

Naturally, the anti-abortion crowd running most of California's crisis pregnancy centers doesn't want to be forced to provide pregnant women with this information. In October 2015, two centers—A Woman's Friend Pregnancy Resource Clinic of Marysville, California, and the Crisis Pregnancy Center of Northern California—filed a suit challenging the law.

The groups, represented by the Pacific Justice Institute, claim the law "unconstitutionally compels [crisis pregnancy centers] to speak messages that they have not chosen, with which they do not agree, and that distract, and detract from, the messages they have chosen to speak." In addition, "disseminating the mandated state inconsistent with plaintiffs' religious convictions." The suit says the regulations violate both freedom of religion and freedom of speech.

Since then, several other groups have brought lawsuits challenging the same law. On Monday, the Supreme Court agreed to hear one of these cases (National Institute of Family & Life Advocates v. Becerra).

The Supreme Court's review will focus on whether "the disclosures required by the California Reproductive FACT Act violate the protections set forth in the Free Speech Clause of the First Amendment, applicable to the States through the Fourteenth Amendment." Previously, both the district court and the U.S. Court of Appeals for the 9th Circuit sided against the National Institute of Family & Life Advocates pregnancy center.

Wisconsin Lawmakers Pass Bill to Protect Property Rights, Reverse Supreme Court Decision

Wed, 08 Nov 2017 10:58:00 -0500

Lawmakers in Wisconsin passed a property rights bill yesterday that effectively overturns a controversial decision made earlier this year by the U.S. Supreme Court. The so-called "Homeowners Bill of Rights" is now headed to Gov. Scott Walker. A key element of the package would broaden the legal protections for landowners who have "substandard lots"—parcels of land that once fit within zoning regulations but no longer do. Five months ago, the Supreme Court ruled in Murr v. St. Croix County that local regulators could effectively treat two neighboring lots owned by the same family as if they were a single parcel of property. "The bill changes that by making it possible to "grandfather" lots that were purchased under discarded regulatory regimes." The bill is meant to "make sure that when people buy property, and they have expectations related to that property, that those expectations do not change over time," says state Rep. Adam Jarchow (R–Balsam Lake), who sponsored the legislation. "And their rights are not taken away because of changing rules or regulations over time." .@AdamJarchow28 bill would restore property owners' rights lost in #SCOTUS #Murr decision, letting prop. owners divide, sell property. #tcot — MacIver Institute (@MacIverWisc) November 7, 2017 That's what happened to the Murrs, the Wisconsin family at the heart of the Supreme Court decision. They bought two parcels of land along the St. Croix River in the 1960s. In 2004 they tried to sell one of the parcels to pay for repairs to the cabin which sits on the other, but local regulators told them that the two parcels were in violation of zoning changes made in 1975. Selling one of the parcels, therefore, was illegal—the family had to sell either both or neither. It took nearly a decade for the case to work its way to the Supreme Court. Though it was a dispute over less than three acres of land, it had significant legal ramifications for western states in particular, because they contain wide swaths of federal land and have to deal with ever-changing regulations about how that land can be used. (The Reason Foundation, which publishes this blog, submitted an amicus brief to the Supreme Court in support of the Murrs' claim.) The Supreme Court ruled 5–3 against the Murrs. "Treating the lot in question as a single parcel is legitimate for purposes of this takings inquiry, and this supports the conclusion that no regulatory taking occurred here," Justice Anthony Kennedy wrote in the majority opinion. In a scathing dissent, Chief Justice John Roberts called the ruling a blow to property rights, saying it would give bureaucrats greater power to pass rules that diminish a property's value without having to compensate the owners under the Firth Amendment's Takings Clause. "Put simply, today's decision knocks the definition of 'private property' loose from its foundation on stable state law rules," Roberts wrote. The ruling "compromises the Takings Clause as a barrier between individuals and the press of the public interest." Ilya Somin, a professor of law at George Mason University, warned that the ruling is "likely to create confusion and uncertainty." At least that won't be the case in Wisconsin anymore. State lawmakers played their proper role by responding quickly to what they saw as a miscarriage of justice and changed the law to correct the problem. All that remains is a signature from the governor. The bill passed Tuesday would also make it easier for landowners to use their property for activities that don't strictly fit within existing zoning codes. It also clarifies that local or state government entities must pay compensation for so-called "regulatory takings," when zoning or other laws make land less usable. That was an aspect of the Murr case too, since the family wanted to be compensated for losing the ability to sell just one of their two parcels of land. John Groen, executive vice president of the Pacific [...]

Trump Judicial Nominees Oppose the Trump Administration on Civil Asset Forfeiture and Birthright Citizenship

Thu, 02 Nov 2017 15:15:00 -0400

(image) President Donald Trump recently nominated Texas Supreme Court Justice Don Willett and former Texas Solicitor General James Ho to fill two vacancies on the U.S. Court of Appeals for the 5th Circuit, the federal appellate court whose jurisdiction covers federal districts in Texas, Mississippi, and Louisiana.

They are both eminently qualified and highly respected in legal circles. They are superb judicial nominees.

There's something else worth noting about them. They have both taken legal positions that are directly at odds with positions taken by the Trump administration.

Let's start with Don Willett. He is perhaps known for his libertarian-leaning views on economic rights and state regulation. He also happens to be a sharp critic of civil asset forfeiture.

Civil asset forfeiture is the controversial practice that allows law enforcement agencies to take property from innocent people who have not been charged or convicted of any underlying crime.

Trump's attorney general, Jeff Sessions, loves civil asset forfeiture. He has called it a "key tool" and is currently pushing for its aggressive use nationwide.

5th Circuit nominee Willett, by contrast, questions whether civil asset forfeiture is even lawful in the first place. "Does our Constitution have anything to say about a 'presumed guilty' proceeding in which citizens are not arrested or tried, much less convicted, but are nonetheless punished, losing everything they've worked for?" Willett complained in the 2014 case Zaher El-Ali v. Texas.

James Ho, Willett's fellow 5th Circuit nominee, stands opposed to the Trump administration on a different legal issue: birthright citizenship. A former clerk to Justice Clarence Thomas, Ho is the author of 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."

Trump holds the opposite view. 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."

We'll have to see about that. I, for one, look forward to watching the Trump administration lose a birthright citizenship case before Judge Ho and then lose an asset forfeiture case before Judge Willett.

Trump Is Starting to Leave His Mark on the Federal Courts

Thu, 02 Nov 2017 12:25:00 -0400

(image) President Donald Trump has yet to score a significant legislative victory. But there is one area of American politics in which the Trump administration has been winning big: federal court appointments.

So far the U.S. Senate has confirmed 10 of Trump's judicial nominees. U.S. Supreme Court Justice Neil Gorsuch has understandably received the most attention. But Trump's lower court picks are extremely important, too. Keep in mind that the Supreme Court decides only 75 cases or so each term. Meanwhile, the federal appellate courts rule on a great many more, and plenty of their decisions are never reviewed by SCOTUS.

The Trump administration is beginning to leave its mark on these lower federal courts. This week, the Senate confirmed Notre Dame law professor Amy Coney Barrett to serve on the U.S. Court of Appeals for the 7th Circuit. The Senate this week also confirmed Michigan Supreme Court Justice Joan Larsen, an advocate of broad executive power, to serve on the U.S. Court of Appeals for the 6th Circuit. Barrett and Larsen follow Trump appointees Amul Thapar, who was confirmed to 6th Circuit in March; John K. Bush, who was confirmed to 6th Circuit in July; and Kevin Newsom, who was confirmed to the 11th Circuit in August.

As things stand now, there are over 100 federal appellate and district court vacancies for Trump to fill. And according to Senate Majority Leader Mitch McConnell, he intends to steer Trump's nominees to Senate confirmation as quickly as possible.

What do Trump's judicial picks mean for the future of American law? It depends on the pick.

On the surface, Trump's nominees can all be described as "conservative." But the similarities start breaking down upon closer examination. Some of them, for example, have written in support of extensive government power to regulate economic activity, while others have insisted that economic liberty deserves far more protection from the courts than it currently receives. Such differences reflect longstanding intellectual divisions over constitutional law and judicial philosophy within the ranks of the conservative legal movement.

And let's not forget the possibility of another Supreme Court vacancy. The current justices are not getting any younger and the chance exists that one or more of them will die or retire in the near future. If that departing justice was appointed by a Democratic president, or happens to be named Anthony Kennedy, you can expect all hell to break loose over the prospect of Trump tipping the Court's balance in a more rightward direction.

Does the Commerce Clause Empower Congress to Regulate Every Living Thing?

Mon, 30 Oct 2017 14:30:00 -0400

According to a Supreme Court brief filed today, Utah prairie dogs "produce nothing of importance except the annoyance of the surrounding population," and "they make terrible pets." The brief, which urges the Court to hear a constitutional challenge to a federal regulation protecting the rodents, concedes that they are "adorable little critters" but notes that "the protection of cuteness is not a congressional power" granted by the Constitution. The brief, filed by the Cato Institute, the Reason Foundation (which publishes this blog), and the Individual Rights Foundation, asks the Supreme Court to overturn a March 2017 ruling upholding the U.S. Fish and Wildlife Service's decision to list Utah prairie dogs as a "threatened" species. That designation makes it a federal crime to "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect" animals on the list. In rejecting a challenge to the listing by People for the Ethical Treatment of Property Owners, the U.S. Court of Appeals for the 10th Circuit relied on an alarmingly broad understanding of the congressional power to regulate interstate commerce. "The government seeks to protect an abundant, commercially irrelevant, and wholly intrastate rodent without regard for whether such regulation has any connection to economic activity, let alone commerce among the several states," says the Cato/Reason/IRF brief. "The Utah prairie dog is not a marketable commodity. There is no illicit trade in prairie dog horns or hides for the government to suppress. They carry no firearms into school zones. Their domestic relations are none of the government's business. Finally, they have neither purchased health insurance nor plan to do so in future." Those are references to Supreme Court cases in which the government claimed (mostly without success) that a federal law was constitutional because the activity it regulated had a "substantial effect" on interstate commerce. Although Utah prairie dogs have no commercial value and live only in the southwestern part of that state, the 10th Circuit reasoned that the power to protect them is a crucial part of a broader regulatory scheme. A similar argument was the basis for Gonzales v. Raich, the 2005 case in which the Supreme Court upheld the federal power to criminalize production and possession of homegrown medical marijuana. But unlike marijuana, Cato et al. note, Utah prairie dogs are not a fungible commodity, and their status has nothing to do with that of other animals protected by the Endangered Species Act. Contrary to what the appeals court implies, the brief says, it is obviously not true that "removal of the prairie dog from federal jurisdiction will render the government impotent to bar trafficking in eagle feathers." If any species are subject to congressional regulation, the appeals court implies, all of them are. "The Tenth Circuit's reasoning would apply to all animals, meaning that a general jurisdiction over all wildlife is hidden in the Commerce Clause," the brief says. "Congress, it is said, does not 'hide elephants in mouseholes,' but apparently the Constitution hides all animals in the nation in a prairie dog hole? Moreover, because the ESA isn't limited to animals but includes plants too, Congress apparently has the power to oversee all living organisms because some living organisms may have a substantial effect on interstate commerce." The 10th Circuit also suggested that Congress can justify its own power grabs by citing their economic impact. "The Constitution does not work on rewind," Cato et al. say. "Congress may not create an economic effect in order to regulate it, for the same reason it may not invade a country to declare war....If the effects of Congress's own laws can create the jurisdictional hook for Commerce Clause regulation, then Congress is the progenitor of its own power." Utah prairie dogs, by the way, ar[...]

When Judicial Restraint Trumps the Second Amendment

Tue, 24 Oct 2017 12:25:00 -0400

Thirty years ago the U.S. Senate refused to confirm the conservative jurist and legal theorist Robert Bork to the U.S. Supreme Court. As a result of Bork's borking, Anthony Kennedy joined the Court instead. Writing at the Library of Law & Liberty, Mark Pulliam wonders what might have been had Bork, not Kennedy, made it through. "As a justice, Bork would likely have been a more conservative (but less sarcastic) version of Scalia," Pulliam writes. But there would have been some crucial differences between the two conservatives. For instance, Pulliam argues, Bork might well have disagreed with Scalia on the Second Amendment. That disagreement could have caused the landmark gun rights case District of Columbia v. Heller to have come out the other way. Here is the heart of Pulliam's case: Why do I suggest that Bork might have voted differently from Kennedy [in Heller]?As far as I can tell, Bork, who died in 2012, never commented publicly on Heller, but his general approach to constitutional interpretation is that courts should defer to the political branches unless the Constitution clearly puts the subject "off limits" from majoritarian rule. The Second Amendment, with its odd phraseology ("A well regulated Militia, being necessary to the security of a free State"), might have presented Bork with the same difficulty as the Ninth Amendment (which he once compared to an "ink blot") or the Privileges or Immunities Clause of the Fourteenth Amendment, making him reluctant to read into the constitutional text rights that the Framers did not expressly put there. This is not mere speculation. In Slouching Towards Gomorrah, Bork referred to the language of the Second Amendment as "somewhat ambiguous[]." In the same passage, he stated that "The Second Amendment was designed to allow states to defend themselves against a possibly tyrannical national government." While it is clear that Bork was opposed to gun control on policy grounds, it is not clear that he agreed that the Second Amendment conferred an individual right. That largely tracks with my own understanding of Bork's jurisprudence. In my book Overruled, I described Bork as a "principled advocate of judicial minimalism," noting that Bork "opposed not only what he saw as the Court's liberal activism in Griswold [v. Connecticut] and Roe [v. Wade], he also rejected what he saw as the conservative activism of Lochner v. New York, the same case denounced by Progressive luminaries such as [Oliver Wendell] Holmes, Felix Frankfurter, and Theodore Roosevelt." In his 1990 book The Tempting of America, Bork argued that one of the biggest threats facing America was the misguided effort to consistently elevate individual liberty above majority rule. As Bork saw it, that approach was totally backwards. The "first principle" of the American system is not individualism, he insisted, it is majoritarianism. "In wide areas of life," Bork wrote, "majorities are entitled to rule, if they wish, simply because they are majorities." Bork's majoritarian philosophy has clear implications for the legal battles over gun control. Take D.C. v. Heller, in which the Court struck down Washington's handgun ban. As Bork might have asked, what business do unelected federal judges have sticking their noses into the regulatory consensus reached by the local officials that are directly accountable to Washington's residents? If would-be gun owners don't like what the law says, the Bork-ian argument goes, they should take their complaints to the ballot box, not to the courthouse. As it happens, that very argument is alive and well in certain conservative legal quarters today. Back in February, conservative Judge J. Harvie Wilkinson III of the U.S. Court of Appeals for the 4th Circuit joined the majority of that court in upholding Maryland's ban on "assault weapons" and detachable large-capacity magazin[...]

Supreme Court to Decide if Data Stored Overseas Can Be Demanded with Warrants

Mon, 16 Oct 2017 12:30:00 -0400

The Supreme Court agreed today to hear and rule whether the federal government can demand access to emails and other data files when they are stored in another country. In United States v. Microsoft Corp., the Department of Justice has been trying since 2013 to get access to emails of a Microsoft customer, looking for evidence this person was involved in drug trafficking. Some of the suspect's data was being stored on a server in Dublin, Ireland. Microsoft has turned over data stored within the United States, but argued, even with probable cause warrants, the feds did not have the authority to make them hand over foreign-stored info. Privacy advocacy groups, tech companies, and the U.S. Chamber of Commerce are on Microsoft's side here. The Department of Justice and 33 states (and Puerto Rico) are on the other. Several court rulings have upheld Microsoft's argument, but the full 2nd Circuit Court ruling was split 4-4. This split keeps the ruling in Microsoft's favor, but there's a clear disagreement among judges about the limits of the authority of the Stored Communications Act—the 1986 federal law that oversees forced disclosures of data by third parties like tech companies. The Justice Department, of course, went full 9/11, arguing limits to their warrant authorities would jeopardize terror investigations. Microsoft, meanwhile, worries about the reaction if the United States sets a bad example here. Via Reuters: "If U.S. law enforcement can obtain the emails of foreigners stored outside the United States, what's to stop the government of another country from getting your emails even though they are located in the United States?" Brad Smith, Microsoft's president and chief legal officer, said in a blog post on Monday. The Justice Department said in its appeal that the lower court ruling "gravely threatens public safety and national security" because it limits the government's ability to "ward off terrorism and similar national security threats and to investigate and prosecute crimes." Reuters notes that tech companies are also concerned that customers may not trust the privacy cloud-based computing services if governments could seize their data. The Justice Department, on the other hand, worries that companies would be able to deprive the government of access to domestic data and communications simply by storing it all overseas. That outcome, frankly, sounds kind of awesome. This is a highly technical case that will probably produce a fairly specific ruling about Congress' intent with the Stored Communications Act and the limits of what that law authorizes. Do not expect a broad ruling about the either the limits of warrants under the Fourth Amendment nor a revised view of the limits of the Third-Party Doctrine that allows the government to access data about private citizens that is stored by tech companies and private firms. Read the Justice Department's petition here.[...]

'Administrative State Is THE Leading Threat to Civil Liberties of Our Era.'

Thu, 12 Oct 2017 16:30:00 -0400

"The administrative state is the leading threat to civil liberties of our era," says Philip Hamburger, the Maurice and Hilda Friedman Professor of Law at Columbia Law School and author of the recent books, Is Administrative Law Unlawful? (2015) and The Administrative Threat (2017). "We have a system of government in which our laws are made by the folks that we elect, and these laws are enforced by judges and juries in the courts, but we have within that an administrative state, a state that acts really by mere command and not through law." Hamburger argues that by reducing the role of elected officials to set policy, the administrative state, which has grown rapidly since World War II, disempowers blacks, women, and other minorities who have only recently gained full voting rights and political power. Before he left the Trump administration, former White House Chief Strategist Steve Bannon famously vowed to "deconstruct" the administrative state—the collection of bureaucrats, agencies, and unelected rule-making bodies who decrees and diktats govern more and more of our lives. And many of the president's picks at places such as the FCC, the FDA, the EPA, and the Department of Education seem to be doing just that: cutting regulations and policies that come not directly from Congress but from administrators who decide, say, that the FCC has the ability to regulate the internet as a public utility, and that so-called net neutrality is a good idea. Trump's appointee to the Supreme Court, Neil Gorsuch, is widely understood to be a critic of the administrative and some of best-known ruling challenged the validity of rules laid out by federal bureaucracies. Reason's Nick Gillespie sat down with Hamburger to discuss why the administrative state is unconstitutional, and what, if anything, can be done reduce its power. Edited by Ian Keyser. Introduction produced by Todd Krainin. Cameras by Jim Epstein and Andrew Heaton. Music "Integration Blues" by Javolenus Available at Under CC BY NC license Subscribe to our YouTube channel. Like us on Facebook. Follow us on Twitter. Subscribe to our podcast at iTunes. This is a rush transcript. Check all quotes against the audio for accuracy. Nick Gillespie: Let's start by defining administrative law in the administrative state. What does it do and where does it come from? Philip Hamburger: Administrative power can be administered many different ways. Some people use the phrase to describe all government power in executive, and that's rather too broad. It's indiscriminate. I use the phrase to describe extra-legal rulemaking and adjudication. Exercise of power to bind Americans, to control Americans, not through the pathways set out by the Constitution and acts of Congress and acts of the court, but through other edicts, typically from agencies. Gillespie: In your recent book, Is Administrative Law Unlawful, you liken the practice of administrative law to off-road driving, and you write, 'The problem examined here is thus not where the government is heading, but how it drives. To leave the roads laid out by the Constitution can be exhilarating, at least for those in the driver's seat. All the same, it is unlawful and dangerous.' So, administrative power, it's not that Congress doesn't make a law and then it gets implemented. That's not administrative power. Congress passes a law that says, 'we want clean air.' And then the EPA says, 'okay, in order to implement that law, we're coming up with all of these different aspects.' Hamburger: Right. The danger is what the agencies do. Congress certainly has power to enact all sorts of laws regulating us, and so this is not an argument against regulation. We can debate the merits of [...]

Supreme Court Considers: Can Cops Arrest You for Going to a Party Where You Don't Know the Host?

Wed, 11 Oct 2017 14:50:00 -0400

"Twenty-one people en masse arrested for trespassing for going to a party. Does that feel right?" asked Supreme Court Justice Sonia Sotomayor, in a case that sees District of Columbia cops on the hook for false arrest. Neither Sotomayor nor her SCOTUS colleagues seemed impressed with the city's contention that guests at a 2008 D.C. house party should have known they were trespassing. The guests had been invited there for a bachelor shindig, directly or secondhand, by a woman named Peaches, and they had little reason to suspect she was lying about having recently rented the house. "You are saying that anytime a policeman goes into a house and there's a party and people tell you, somebody invited me, and it turns out that that somebody didn't have a right to be in the house, you can arrest [the invited guests]?" Justice Stephen Breyer asked the city's attorney during oral arguments last Wednesday. When invited to a party at someone's home, "I don't ask to look at their lease," said Sotomayor. "I don't ask to—for them to establish, to my satisfaction or anyone else's, their right to be there. I assume if they're there, they can invite me in." It might seem silly that the Supreme Court is discussing a rogue bachelor party, but the case could have big implications for police accountability. The "Supreme Court should not further expand the doctrine of qualified immunity in the context of the Fourth Amendment's probable cause requirement," argues the American Civil Liberties Union. That would weaken Americans' ability "to hold government officers accountable for their unconstitutional actions," and would diverge from "the principles undergirding the Framers' intent in drafting the Fourth Amendment's prohibition on unreasonable seizures." Yale Law School filed a brief supporting the partygoers. Party at Peaches' Upon being called to the house by a complaint from neighbors, D.C. police "heard loud music playing inside" and "saw a man look out the window and then run upstairs" when they knocked, according to the city's summary of the case. Police claim the door was ajar and when they entered, there was "a strong odor of marijuana" and women were in their undergarments "with money hanging out [from] their garter belts." Some people were standing around drinking; some were getting lap dances. Police eventually determined that this was a party thrown by Peaches, who had hired the dancers, invited some guests (who invited guests of their own as well), and recently stepped out to go to the store. But while Peaches was in negotiations with the house's owner to rent the place (and may have even had keys), she had never actually sealed the deal on the lease and did not have permission to throw a party there—all things she admitted to the police when they called her from the party. Peaches did not implicate her guests in the scheme, and they claim that they didn't know of her deception (or, in some cases, didn't know who lived at the house but had no reason to suspect they were trespassing). Still, all 21 people at the house were arrested for unlawful entry and taken to the police station, where they were detained for several more hours. All 21 would be booked for disorderly conduct, though those charges were eventually dropped. The group filed a lawsuit seeking damages from the city and the arresting officers, alleging false arrest and violation of their Fourth Amendment rights. A district court sided with the partygoers, finding that D.C. police lacked probable cause to arrest them for unlawful entry. "Nothing about what the police learned at the scene suggests that [partygoers] 'knew or should have known that [they were] entering against the [owner's] will," wrote the court. A jury awarded each responded $35,000 to $50,000, with the city[...]

3 Supreme Court Cases to Watch in Fall 2017

Mon, 02 Oct 2017 09:50:00 -0400

The U.S. Supreme Court is back in session today after its summer break, and the new term is already shaping up to be an explosive one. Here are three cases to watch in the coming months: 1. Carpenter v. United States The Fourth Amendment guarantees "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Yet according to the U.S. Supreme Court's 1979 decision in Smith v. Maryland, "a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties." Otherwise known as the third-party doctrine, this legal rule has been a great gift to law enforcement agencies on both the federal and state levels. Let's say the police want to know the email addresses of your correspondents, or the URLs of the websites you have visited. Under the third-party doctrine, the police do not need a search warrant (issued upon probable cause) to get that information from your internet service provider. But doesn't the idea of granting vast warrantless search powers to the police run afoul of the bedrock protections enshrined in the Fourth Amendment? The Supreme Court will grapple with those questions this term in Carpenter v. United States. At issue is whether the FBI violated the Fourth Amendment when it obtained, without a search warrant, the cellphone records of suspected armed robber Timothy Carpenter. With those records, law enforcement officials identified the cell towers that handled the suspect's calls and then proceeded to trace back his whereabouts during the time periods in which his alleged crimes were committed. That information was used against Carpenter in court. According to Carpenter and his lawyers, "carrying a smartphone, checking for new emails from one's boss, updating the weather forecast, and downloading directions ought not license total surveillance of a person's entire life." According to the Trump administration, "a cell-phone user has no reasonable expectation of privacy in business records created by his provider documenting the cell sites used to document his calls." Oral arguments in Carpenter v. United States have not yet been scheduled. 2. Christie v. National Collegiate Athletic Association According to the terms of the federal Professional and Amateur Sports Protection Act of 1992 (PASPA), it is illegal for "a governmental entity to sponsor, operate, advertise, promote, license, or authorize by law or compact" sports betting. The state of New Jersey, however, went ahead and legalized sports betting in certain casinos and racetracks by partially lifting its existing ban on the practice. According to the National Collegiate Athletic Association, the National Basketball Association, the National Football League, the National Hockey League, the Office of the Commissioner of Baseball, and the Trump administration, the state's legalization effort is illegal under PASPA. Put differently, Christie v. N.C.A.A. presents a clash between federalism and federal power. "Never before has congressional power been construed to allow the federal government to dictate whether or to what extent a State may repeal, lift, or otherwise modulate its own state-law prohibitions on private conduct," New Jersey told the Supreme Court in its petition for certiorari. "And never before has federal law been enforced to command a State to give effect to a state law that the State has chosen to repeal." PASPA is "an unremarkable exercise of Congress' settled power to regulate commerce in sports gambling," the sports leagues counter in their brief in opposition to the state's petition. "PASPA is a straightforward exercise of Congress' power to preempt the operation of state laws that conflict with federal policy o[...]

D.C. Circuit Won't Reconsider Decision Upholding the Right to Be Armed in Public

Fri, 29 Sep 2017 15:00:00 -0400

Yesterday a federal appeals court let stand a decision overturning the District of Columbia's tight restrictions on carrying guns in public, reinforcing a circuit split that invites the Supreme Court to settle the issue of whether the constitutional right to keep and bear arms extends outside the home. Last year a federal judge in D.C. said it does, and last July a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit agreed. Now that the full court has declined to rehear the case, only the Supreme Court can save the District's highly discretionary carry permit policy, which requires applicants to provide a "good reason" why they want to be armed. An ordinary resident's desire to defend himself does not count. In its decision last May, the D.C. Circuit panel concluded, based on historical evidence and the Supreme Court's reasoning in the landmark Second Amendment case District of Columbia v. Heller, that "the individual right to carry common firearms beyond the home for self-defense—even in densely populated areas, even for those lacking special self-defense needs—falls within the core of the Second Amendment's protections." Since "the law-abiding citizen's right to bear common arms must enable the typical citizen to carry a gun," the court said, the District's law is clearly unconstitutional, amounting to "a total ban on most D.C. residents' right to carry a gun in the face of ordinary self-defense needs, where these residents are no more dangerous with a gun than the next law-abiding citizen." The U.S. Court of Appeals for the 7th Circuit reached a similar conclusion in 2012, when it overturned an Illinois law that prohibited most people (aside from police officers, security guards, and a few other exceptions) from carrying ready-to-use guns. That same year, by contrast, the U.S. Court of Appeals for the 2nd Circuit upheld New York's requirement that people seeking permission to carry handguns in public show "proper cause." In 2013 the U.S. Court of Appeals for the 3rd Circuit upheld a similar New Jersey law, requiring a "justifiable need" for a carry permit, and the U.S. Court of Appeals for the 4th Circuit upheld a Maryland law demanding a "good and substantial reason." Last year the U.S. Court of Appeals for the 9th Circuit upheld a California law requiring "good cause" for carrying a concealed weapon. "The Second Amendment does not protect the right of a member of the general public to carry concealed firearms in public," the court declared, noting that Heller mentions "prohibitions on carrying concealed weapons" as a kind of law that most 19th-century courts had deemed consistent with the Second Amendment. "There may or may not be a Second Amendment right for a member of the general public to carry a firearm openly in public. The Supreme Court has not answered that question, and we do not answer it here." In June the Supreme Court declined to hear an appeal of that decision, provoking strong objections from Justices Clarence Thomas and Neil Gorsuch. "I find it extremely improbable that the Framers understood the Second Amendment to protect little more than carrying a gun from the bedroom to the kitchen," Thomas wrote in a dissent joined by Gorsuch. "I do not think we should stand by idly while a State denies its citizens that right, particularly when their very lives may depend on it....Even if other Members of the Court do not agree that the Second Amendment likely protects a right to public carry, the time has come for the Court to answer this important question definitively." The D.C. Circuit has amplified that argument by confirming the stark disagreement among federal appeals courts about the scope of the right to bear arms.[...]

Trump Nominates Libertarian-Minded Texas Justice Don Willett to U.S. Appellate Court

Thu, 28 Sep 2017 16:20:00 -0400

(image) Texas Supreme Court Justice Don Willett has just been called up to the big leagues.

As Peggy Fikac of Express News reports, President Donald Trump will nominate Willett to fill one of two vacancies on the U.S. Court of Appeals for the 5th Circuit, the federal appellate court whose jurisdiction covers federal districts in Louisiana, Mississippi, and Texas.

Willett, who appeared on Trump's 2016 list of potential U.S. Supreme Court candidates, is a rising star in conservative and libertarian legal circles and a popular presence on Twitter. If he is successfully confirmed to the 5th Circuit, Willett would immediately rank as one of the most libertarian federal judges in the country.

Willett is best-known for his aggressive judicial stance in favor of individual rights and economic liberty. In the 2015 case of Patel v. Texas Department of Licensing and Regulation, for example, Willett lambasted state officials for requiring eyebrow threaders to obtain a costly government license before engaging in the harmless act of threading cotton string through customers' eyebrows in order to remove old hair and skin.

"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."

In Willett's view, both the U.S. Constitution and its Texas counterpart contain judicially enforceable protections for "the right to earn a living free from unreasonable government intrusion." In the interests of full disclosure, I should also note that Willett's Patel opinion favorably cites my 2014 book Overruled: The Long War for Control of the U.S. Supreme Court.

Willett has been equally outspoken when it comes to government malfeasance in the criminal justice realm. When the Texas Supreme Court refused to hear the 2014 asset forfeiture case Zaher El-Ali v. Texas, for instance, Willett filed a sharp and memorable dissent. "Does our Constitution have anything to say about a 'presumed guilty' proceeding in which citizens are not arrested or tried, much less convicted, but are nonetheless punished, losing everything they've worked for?" he complained.

The Trump administration deserves credit for this pick. Willett is a superb jurist and he will make an excellent addition to the 5th Circuit.