Published: Sun, 30 Apr 2017 00:00:00 -0400
Last Build Date: Sun, 30 Apr 2017 06:56:13 -0400
Thu, 27 Apr 2017 10:31:00 -0400If 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 on my key chain....No one ever saw it. It was there the whole time, and then I walked out." That offense likewise would require a "yes" to Question 22, and a "no" would be grounds for denaturalization. So would the fail[...]
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.
Tue, 25 Apr 2017 11:10:00 -0400Does 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 Supreme Court decides to take the case.[...]
Mon, 24 Apr 2017 14:05:00 -0400A 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 together and see the same kind of debates. So it seems likely that the massive full report would also be focused on the deep procedural issues of how the torture came to pass. Nevertheless, Shamsi says the full report would[...]
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.
Fri, 21 Apr 2017 10:15:00 -0400This 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 person, adjudged guilty of no crime, nonetheless guilty enough for monetary exactions.' Unfortunately, civil forfeiture laws turn the presumption of innocence on its head. Using civil forfeiture, law enforcement seize[...]
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."
(image) 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.
Wed, 19 Apr 2017 11:25:00 -0400Donald Trump boasted of his love for eminent domain during the 2016 presidential campaign, calling it an "absolute necessity." And the billionaire real estate developer has a long record of pushing government redevelopment agencies to seize private property to make way for his projects. Little Pink House, a new feature film written and directed by Courtney Balaker, looks at eminent domain abuse by recounting the true story behind of an epic 2005 Supreme Court case. Though Trump is no longer directly managing his real estate business, given his authoritarian tendencies, the story depicted in the film is more relevant than ever. (Little Pink House, which stars Academy Award nominated actress Catherine Keener, was produced by Balaker's husband and creative partner, Ted, who is also a former Reason TV producer.) Eminent domain is when the government forces the sale of private property to make way for a so-called public use. That could mean a highway, a school—or in the case of Kelo v. the City of New London, a pharmaceutical plant In 2000, Susette Kelo was a registered nurse who had just moved into a small, pink house in a middle-class area of New London, Connecticut. Seven months later, the city announced plans to turn her Fort Trumbull neighborhood into new research facilities for the Pfizer corporation. She was told she'd need to find a new place to live. City officials and a nonprofit economic development group claimed the new facility would bring business and jobs to the area. Kelo didn't want to sell, so the city moved to take her house by force. She joined with six other residents and sued the city on the grounds that New London's use of eminent domain was unconstitutional. The case made it to all the way to the Supreme Court. Though the city prevailed, the decision led to a public backlash, causing many states to pass new laws limiting the use of eminent domain. When working on the script for Little Pink House, Balaker says she was inspired by Kelo's courage and humility—which Catherine Keener perfectly captured in the film. "What resonated with [Keener] was this concept of your spot," says Balaker. "When you find your place and you can really root yourself into that place and how disruptive that is to somebody to uproot you against your will." "Apart from putting you in jail or killing you, to take away your home or your livelihood is about the most serious thing that a government can do," says Scott Bullock with the Institute for Justice, who was Kelo's lawyer all the way up to the Supreme Court. Actress Jean Tripplehorn plays Charlotte Wells, who in the movie spearheads the initiative to forcibly take Kelo's home to build a pharmaceutical plant. Wells gives voice to all of the typical rationales for seizing private property: Creating jobs, economic revitalization, and restoring a sense of grandeur to a fallen industrial town. But don't look for any mustache twirling villains here. "Jean, had a great way of describing it—this is a very misguided woman," says Balaker. "Someone who was on the right path but then went down the very, very, wrong path to get what she wanted." Pfizer's facility was never built in Fort Trumbull. After the city seized and bulldozed many of the homes in the area, the company walked away from the venture. Today, the site of the proposed project is a wasteland. Balaker's film opened the Athena Film Festival this year and was screened at the Vail Film Festival where it picked up the audience award. Produced by Paul Detrick. Shot by Alexis Garcia and Alex Manning. Dama-May - Primal Drive by Kevin MacLeod is licensed under a Creative Commons Attribution license (https://creativecommons.org/licenses/by/4.0/) Source: http://incompetech.com/music/royalty-free/index.html?isrc=USUAN1200086 Artist: http://incompetech.com/ Consequence - Wonders by Kevin MacLeod is licensed under a Creative Commons Attributio[...]
Wed, 19 Apr 2017 00:01:00 -0400Democrats are understandably bitter about the Republican intransigence that ultimately allowed Neil Gorsuch to take a seat on the U.S. Supreme Court this week. But for Democrats who care about civil liberties, Gorsuch is a better choice than Merrick Garland, the nominee Republican senators refused to consider after he was nominated by President Obama last year. Garland, who has served on the U.S. Court of Appeals for the D.C. Circuit since 1997, was frequently described as a "moderate" after Obama picked him to replace Justice Antonin Scalia, who died in February 2016. Garland earned that label mainly by siding with the government, sometimes in cases where conservatives liked the result and sometimes in cases where liberals did. Despite his reputation on the left as an authoritarian, Scalia defended the rights of the accused more consistently than some of his purportedly more liberal colleagues. And as SCOTUSBlog publisher Tom Goldstein noted, Garland is "to the right of Scalia on criminal justice issues." Gorsuch, who served for a decade on the U.S. Court of Appeals for the 10th Circuit, seems closer to Scalia in this area. Like Scalia, he is a critic of vague criminal statutes and a stickler when it comes to requiring that prosecutors prove all the elements of an offense. Both tendencies were apparent in a 2015 case involving merchants charged with violating the Controlled Substance Analogue Enforcement Act by selling "incense" containing a synthetic cannabinoid. Even without delving into the "vagueness concerns" raised by the Analogue Act, Gorsuch said, it was clear the defendants had been improperly convicted because the jury instructions "effectively relieve[d] the government of proving each essential element specified by Congress." Gorsuch's concern about the proper application of criminal statutes was also apparent when he dissented from a 2016 decision in which the 10th Circuit upheld the arrest of a New Mexico seventh-grader who burped up a storm during P.E. class, to the amusement of his peers and the annoyance of his gym teacher. According to the New Mexico Court of Appeals, Gorsuch pointed out, the law under which the boy was charged, which makes "interfering with the educational process" a misdemeanor, "does not criminalize 'noise[s] or diversion[s]' that merely 'disturb the peace or good order' of individual classes." Another 2016 dissent shows that Gorsuch shares Scalia's respect for the zone of privacy protected by the Fourth Amendment. When the 10th Circuit said it was constitutional for police to ignore multiple "No Trespassing" signs on the property of a suspected drug dealer, Gorsuch criticized his colleagues for endorsing "an irrevocable right to enter a home's curtilage to conduct a knock and talk." Although progressives may be willing to concede that Gorsuch is preferable to Garland on criminal justice, they tend to view another contrast between the two judges with alarm. Gorsuch is more inclined than Garland (or Scalia) to question the authority of administrative agencies. While Goldstein found that Garland has "strong views favoring deference to agency decisionmakers," Gorsuch is a prominent critic of the Chevron doctrine, which gives agencies wide authority to resolve ambiguities in the laws they are charged with enforcing. Gorsuch sees excessive deference to executive-branch agencies as a threat to the separation of powers. It is also a threat to individual freedom. Giving one agency the power to interpret and rewrite the law as well as enforce it poses a clear threat to people at the agency's mercy, including the obscure and vulnerable as well as the rich and powerful—a point that progressives who view Chevron as an essential bulwark of the regulatory state have trouble recognizing. Prior to Gorsuch's confirmation, People for the American Way cited a 2016 decision as evidence [...]
Mon, 17 Apr 2017 13:55:00 -0400Today is newly seated Supreme Court Justice Neil Gorsuch's first day at the office hearing cases. He is apparently not going to be a quiet, Clarence Thomas-style justice and asked several questions during the first case before the court. Before this morning's case—which is a procedurally-oriented matter about the processes required appeal federal work discrimination complaints—the Supreme Court released its list of orders from last week's conference and decided not to take any new cases as yet. Gorsuch did not participate in this last conference but will for the next one. This matters because the Supreme Court has repeatedly declined to make a decision whether to take a high-profile case about businesses declining to serve gay weddings and has been bumping it to future conferences since last December. It rescheduled the case yet again this morning. That case is Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission. This is a case about wedding cakes, gay marriage, and whether businesses can decline to provide their goods and services on the basis of religious beliefs. Jack Phillips, owners of Masterpiece Cakeshop in Lakewood, Colorado, declined (all the way back in 2013) to bake a wedding cake for a gay couple's wedding. This decision ran him afoul of Colorado's public accommodation laws, which forbid discrimination on the basis of sexual orientation. Phillips' response, as we have seen in many of these cases, is that he's not refusing to serve gay people, but he has religious objections to gay marriage and sees being obligated to make a wedding cake as being compelled to put his stamp of approval on it. Courts across the country have disagreed with Phillips and other businesses that serve weddings, like florists and photographers. Courts have thus far declined to accept the argument that refusing to serve gay weddings is somehow different from refusing to serve gay people. Furthermore courts have declined to accept the claim that floral arrangements or wedding cakes are a form of protected expression and that compliance with law compels speech or forces people to compromise their religious beliefs. That the Supreme Court kept pushing back a decision on whether to take this case until now is significant because they've already previously rejected to hear a similar fight. A photographer in New Mexico tried to get the court in 2014 to hear their case where the state told them they couldn't refuse to provide their services for a gay couple's wedding. The photography company, like Masterpiece Cakeshop, lost their challenge to the law, and the Supreme Court declined to hear the case. Now, three years later, the court appears to be delaying a decision at least until Gorsuch has been seated. There haven't been any cases where higher courts have accepted the arguments of the religious shop owners, so there's no "split" that requires the Supreme Court to resolve. Most recently, a florist in Washington State lost her challenge just like the bakery and photographer had before her. It's possibly significant that the Supreme Court didn't again simply refuse to certify a case that's very similar to one they've rejected before. Damon Root has carefully analyzed what Gorsuch is likely to be bringing to the court here. On Wednesday, the Supreme Court will be hearing a case connected to the boundaries of separation between church and state. The question at hand is whether it's constitutional for Missouri to withhold grants from a state program funding playground equipment from religious schools. Missouri's state constitution forbids it; the religious schools say this counts as religiously motivated discrimination. The only real fundamental overlap here with the bakery case is the invocation of religious freedom, so be wary of reading too much into any questions Gorsuch might ask in tha[...]
Fri, 07 Apr 2017 11:55:00 -0400Neil Gorsuch has been officially confirmed to the U.S. Supreme Court by a final vote of 54-45 in the U.S. Senate. The 49-year-old jurist will now fill the vacancy created by the death of Justice Antonin Scalia last year. Today's vote came as the culmination of a bitter partisan fight that has transformed the way in which the Senate will do business on Supreme Court nominations going forward. After the Democratic minority mounted a filibuster this week against Gorsuch, Senate Republicans triggered the so-called nuclear option, a fundamental change in Senate procedural rules that has effectively killed all future filibusters for all future SCOTUS nominees (Senate Democrats "nuked" the filibuster for lower court nominees in 2013). Exactly how this post-nuclear landscape will shape the next Supreme Court confirmation battle remains to be seen. Neil Gorsuch will join a Court that is narrowly split along ideological lines. In the near term, his presence is unlikely to disturb that status quo. What that means is that the Court, at least for now, is likely to remain divided 5-4 in cases dealing with such hot-button issues as abortion rights, affirmative action, campaign finance, and gun control. Yes, Gorsuch will be the new kid on the block, but the justice to watch in those sorts of cases will still be perennial tie-breaker Anthony Kennedy. But what about those areas of the law in which the Court does not divide along predictable conservative-liberal lines, such as criminal justice? For example, the late Justice Scalia was widely admired by criminal justice reformers for his opinions in Fourth Amendment cases. As Scalia himself once put it, "I have defended criminal defendants' rights—because they're there in the original Constitution—to a greater degree than most judges have." By contrast, liberal Justice Stephen Breyer typically reaches the opposite result in such cases and tends to rule in favor of prosecutors and police. Indeed, from a civil libertarian point of view, Justice Breyer is terrible on the Fourth Amendment. Meanwhile, another liberal justice, Sonia Sotomayor, is a Fourth Amendment champion who usually sided with Scalia. Where will Neil Gorsuch fit in? Given his record, I would not be surprised to see Gorsuch coming down on the Scalia-Sotomayor side of this divide, rather than on the Breyer side. Gorsuch is especially well-poised to have a lasting impact on the Court when it comes to the issue of Chevron deference, a far-reaching legal doctrine that takes its name from the Court's 1984 decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council. According to Chevron deference, when the federal courts are confronted with an "ambiguous" statute, the default position is for federal judges to defer to the statutory interpretation favored by the executive branch agency charged with enforcing that statute. "Federal judges—who have no constituency—have a duty to respect legitimate policy choices made by those who do," argued Justice John Paul Stevens in his Chevron majority opinion. "While agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for this political branch of the Government to make such policy choices." Chevron, in other words, instructs the courts to tip the scales in favor of the executive branch. Chevron is a well-established Supreme Court precedent, but it does have its critics. Most notably, Justice Clarence Thomas has taken aim repeatedly at what he sees as the ruling's unconstitutional aggrandizement of executive branch agencies. Chevron "wrests from Courts the ultimate interpretative authority to 'say what the law is,'" Thomas complained in Michigan v. EPA, "and hands it over to the executive." That sort of judicial disarmament "raises serious separation of pow[...]
Thu, 06 Apr 2017 13:54:00 -0400With Democrats promising to use the filibuster to block the nomination of Judge Neil Gorsuch to the Supreme Court, Senate Republicans on Thursday afternoon triggered the so-called "nuclear option" and abolished the upper chamber's 60-vote threshold for appointments to the high court. It took a series of parliamentary maneuvers, but the end result is the establishment of a new precedent allowing future Supreme Court nominees to be confirmed by the Senate with a simple majority vote (as has been the case for all other federal court appointments since the Democrats similarly changed the rules in 2013). The final vote on the rule change was 52-48, along party lines. The vote does not confirm Gorsuch, but clears the way for an expected confirmation vote Friday. Brinkmanship over the Senate's filibuster for presidential court picks has been as much about assigning blame than anything else. Republicans say Democrats lit the fuse for the nuclear option in 2013, when then-Majority Leader Harry Reid (D-Nevada) changed the rules to block a Republican filibuster of some of President Barack Obama's federal court nominees. Democrats blame Republicans for refusing to give Obama's Supreme Court nominee, Merrick Garland, a hearing or a vote last year and forcing Gorsuch through without getting the requisite 60 votes to avoid a filibuster. Both sides will surely try to raise money and make campaign ads out of Thursday's vote. That 60-vote threshold has always been something of an illusion, since any majority coalition of senators could have abolished it at any time. The filibuster is a great protection against majoritarianism, but it has survived this long—ironically—because no majority ever decided to kill it and no minority was ever foolish enough to goad the majority into doing so. (Fans of the filibuster will be happy to know there seemingly is little appetite for eroding its use in legislative matters, as Dave Weigel reports) Democrats very well may wish that they still had the filibuster at their disposal when the next Supreme Court nominee comes before them. With Trump in office for the next four years and a difficult electoral map facing them in 2018, they may be in the minority for some time, and Trump's next appointee may not be as agreeable as Gorsuch. For that matter, it's not hard to imagine a future moment when Republicans, too, will look back at today and wonder why they disposed of the filibuster. A future, progressive president with a liberal majority in Congress will be able to push judicial nominees that stretch the Supreme Court far beyond its traditional middle-of-the-road political views. And that's the only thing we can say with any certainty about today's vote: that it will drive our politics further to the edges of the mainstream. Whether that is for good or for ill depends on your individual point of view, but the truth is that both sides will now be able to approve lifetime nominees to the Supreme Court based on the outcome of the most recent election cycle, rather than having to find consensus candidates that could win support across the Senate's center aisle. The consequences of triggering the nuclear option, I think, will not be fully known for a long time.[...]
Thu, 06 Apr 2017 06:00:00 -0400
On April 4, 1952, the United Steelworkers of America called for a nationwide strike in the hopes of driving up wages throughout the steel industry. But on the eve of the planned walkout, President Harry Truman stuck his nose where it didn't belong. With the stroke of a pen, Truman killed the strike by ordering Secretary of Commerce Charles Sawyer to seize control of most of the nation's privately owned steel mills and operate them on behalf of the federal government.
How did Truman justify this sweeping exercise of presidential authority? How else? He raised the specter of national security and invoked his "inherent powers" as commander in chief. Pointing to the presence of U.S. forces in Korea, Truman insisted that the success of the war effort depended on the president's unilateral ability to keep the steel mills humming. "In order to assure the continued availability of steel and steel products during the existing emergency," Truman wrote in Executive Order 10340, "it is necessary that the United States take possession of and operate the plants, facilities, and other property of the said companies."
Unsurprisingly, the said companies took a different view of the matter. They filed suit in federal court, charging Truman with usurping the legislative powers of Congress and overstepping his lawful powers as president. A little less than two months later, the Supreme Court stopped Truman dead in his tracks.
"The President's order does not direct that a congressional policy be executed in a manner prescribed by Congress—it directs that a presidential policy be executed in a manner prescribed by the President," wrote Justice Hugo Black in Youngstown Sheet and Tube Company v. Sawyer. Yet "the Founders of this Nation entrusted the lawmaking power to the Congress alone in both good and bad times." To hold otherwise, Black said, would be to turn the Constitution on its head. "It would do no good," he added, "to recall the historical events, the fears of power, and the hopes for freedom that lay behind their choice. Such a review would but confirm our holding that this seizure order cannot stand."
Harry Truman was not the first president to issue a lawless executive order and he quite obviously has not been the last. That's why Youngstown remains such an important precedent to have on the books. Even in times of war and national insecurity, the ruling insists, no president is above the Constitution.
Tue, 04 Apr 2017 13:55:00 -0400
(image) Senate Democrats are threatening to mount a filibuster this week against Trump Supreme Court nominee Neil Gorsuch. Why? Among other reasons, the Democrats say they want some payback for last year's Republican stonewalling of Obama Supreme Court pick Merrick Garland, whose SCOTUS nomination languished for months without getting so much as a hearing from the Senate Judiciary Committee. As Democratic Sen. Thomas Carper (Del.) recently told The Washington Post, "I have a very hard time getting over what was done to Merrick Garland. That's a wrong that should be righted."
While the Democrats are busy trying to right that wrong this week they might also take a moment to consider whether Merrick Garland was really all that preferable to Neil Gorsuch on certain issues that Democrats claim to care deeply about. After all, remember that when President Obama first nominated Garland, many liberal activists spoke out in protest and disappointment. And it was no wonder why. As I noted at the time, "while Garland is undoubtedly a legal liberal, his record reflects a version of legal liberalism that tends to line up in favor of broad judicial deference to law enforcement and wartime executive power."
I leave it to Senate Democrats to ponder whether or not that is the sort of justice they would like to see on the Supreme Court in the era of President Trump and Attorney General Sessions.
Meanwhile, when it comes to some of those very same issues, Neil Gorsuch may well be more "liberal" than Merrick Garland. Take criminal justice. Garland's record is that of a judge who routinely sides with prosecutors and police. As SCOTUSblog founder Tom Goldstein concluded, "Judge Garland rarely votes in favor of criminal defendants' appeals of their convictions." By contrast, Gorsuch's record reveals a judge who takes the Fourth Amendment seriously as a constitutional safeguard designed to protect all persons, including unpopular criminal suspects, against abusive law enforcement tactics.
Along similar lines, Garland is well-known for advocating judicial deference to both executive branch agencies and to those agencies' interpretations of the laws and regulations they are supposed to enforce. Gorsuch is famous for taking the opposite view. Indeed, Gorsuch's most well-known opinion came in a case in which the Board of Immigration Appeals overstepped its lawful authority in an effort to deprive an undocumented immigrant of his rights. Gorsuch ruled against that executive branch agency. Garland's record, on the other hand, strongly suggests that he would have deferred to the executive agency under the same circumstances.
Perhaps the Democrats are right to seek political retaliation for the fact that their party's nominee never even got a hearing. But perhaps some Democrats might also be quietly relieved that the same nominee never made it to SCOTUS.
Tue, 04 Apr 2017 11:00:00 -0400One telling measure of Democrats' desperation to find reasons for opposing Neil Gorsuch's nomination to the Supreme Court is the extent to which they have misrepresented his statements regarding Brown v. Board of Education, the 1954 decision that said racial segregation in public schools violates the 14th Amendment's guarantee of equal protection. On March 27, during a meeting at which the Senate Judiciary Committee discussed Gorsuch's nomination, Sen. Dianne Feinstein (D-Calif.) claimed "he wouldn't say" when asked whether he "support[ed]" Brown. On CNN yesterday, Sen. Richard Blumenthal (D-Conn.) said he had "asked [Gorsuch] repeatedly to say whether he agreed" with Brown, and "he refused to say whether it was correct or not." The New York Times quotes Sen. Mark Warner (D-Va.) as saying, "My understanding was he wouldn't even vouch for Brown v. Board of Education." Warner's understanding is wrong, and so are Feinstein and Blumenthal's recollections. Blumenthal first asked Gorsuch about Brown on March 21, the second day of his confirmation hearing: Blumenthal: Do you agree with the result in Brown v. Board of Education? Gorsuch: Senator, Brown v. Board of Education corrected an erroneous decision—a badly erroneous decision—and vindicated a dissent by the first Justice Harlan in Plessy v. Ferguson where he correctly identified that separate [but equal] to advantage one race can never be equal. Blumenthal: And do you agree with the result? Gorsuch: In Plessy? No. Blumenthal: Do you agree with the result in Brown v. Board? Gorsuch: Brown v. Board of Education, Senator, was a correct application...of the law and precedent. Blumenthal: By the way, when Chief Justice Roberts testified before this committee and he was asked by Senator Kennedy, quote, "Do you agree with the Court's conclusion?"— meaning in Brown, that the segregation of children in public schools solely on the basis of race is unconstitutional—Judge Roberts answered unequivocally, quote, "I do." Would you agree with Judge Roberts? Gorsuch: Senator, there's no daylight here. Blumenthal: OK... Gorsuch: Justice Harlan got the original meaning of the Equal Protection Clause right the first time. And the Court recognized that belatedly. It's one of the great stains on the Supreme Court's history that it took it so long to get to that decision. In short, Gorsuch said Brown was "a correct application of the law and precedent," which means it was properly decided; he said his position on Brown was the same as Chief Justice Roberts'; and he said Brown rightly vindicated Harlan's view of the Equal Protection Clause. That seems pretty unequivocal to me. But it did not satisy Blumenthal, who repeated his question the next day: Blumenthal: I want to go back to some questions I asked you yesterday, which perhaps you didn't get a chance to clarify. And I want to give you that opportunity. You recall we were talking about Brown v. Board of Education. And you said, I believe, that you agree with that decision. Do I have it correctly? Gorsuch: Senator, it is a seminal decision of the United States Supreme Court, interpreting the 14th Amendment, maybe one of the great moments in Supreme Court history. Blumenthal: You said, and I quote, that it "corrected an erroneous decision, a badly erroneous decision," end quote, and you called it, quote, "a correct application of the law of precedent," end quote. And you said also that it vindicated a dissent, quote, "that got the original meaning of the Equal Protection [Clause] right." That sounds to me like you agreed with the result in Brown v. Board of Education. Gorsuch: Senator, you can characterize it however you want. I've said what I said....I st[...]