Posting This Because I Thought no one Would See It – Quoting Somin

Volokh Conspiracy readers may be interested to see videos of two panels I participated in at this year’s recently concluded Federalist Society National Lawyers Convention: “The Wisdom and Legality of Sanctuary Cities” and “Originalism and Constitutional Property Rights.”

In the sanctuary cities panel, I crossed swords with former Attorney General Jeff Sessions, among others, and explained why the Trump administration’s attacks on sanctuary cities violate constitutional limits on federal power, and have—fortunately—led to a long series of defeats in court, at the hands of both liberal and conservative judges. I also described why sanctuary jurisdictions have good policy and moral reasons for refusing to cooperate with some aspects of federal immigration enforcement, including the fact that involving local police in immigration enforcement undercuts ordinary law enforcement. Sanctuary jurisdictions are also justified in rejecting cooperation with federal deportation efforts, given the horrific abuses in its immigration detention facilities, and the government’s history of wrongfully detaining and deporting even US citizens.

At the property rights panel, I discussed and debated the original meaning of constitutional protections for property rights with distinguished takings scholars Tom Merrill (Columbia), Richard Lazarus (Harvard), and my George Mason University colleague Eric Claeys.  I argued that the original meaning of the Takings Clause requires judicial enforcement of tight limits on government power to take property for “public use,” a concept which should be given a narrow construction encompassing only publicly owned projects, while excluding most condemnations that transfer property to private parties. My talk was in large part based on my book The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain.

On the property rights panel, I advocated what might be seen as a right-wing position (defending strong constitutional protection for property rights). On the sanctuary cities panel, I defended what is usually considered a  “left-wing” perspective on sanctuary cities. But, despite the seeming contradiction, I think there is actually an underlying coherence between the two positions: both advocate strong judicial enforcement of constitutional limits on government power, and both protect poor and vulnerable populations against the sometimes overwhelming power of the state.

Of course this year’s Federalist Society Convention will probably be best remembered for Attorney General William Barr’s seriously flawed speech extolling an extraordinarily broad theory of executive power. Among other things, he ignores the many ways in which executive power has grown far beyond the Founders’ design and argues for near-total judicial (and often also congressional) deference to the president on anything involving “foreign relations” and “exigent circumstances.” This is a misreading of the Constitution, and such deference has historically led to grave abuses of power. If time permits, I may have more to say on Barr’s speech later.

I Think Everyone but Thomas Piled on the Poor Guy

https://www.supremecourt.gov/oral_arguments/argument_transcripts/2018/17-1091_1bn2.pdf

 

This is 70+ pages of a good lawyer trying convince the Court to incorporate the federal right to claim a fine is excessive (as applied to a civil forfeiture).  The Indiana trial court and appellate intermediate court thought the fine [forfeiture] was excessive and ruled with the defendant, explicitly having decided under the US Constitution.  Indiana Supremes said that was not clearly laid out in any US Supreme Court case, and reversed.

 

So here we are, with a plausible argument before the Supreme Court and nobody even beginning to buy it.  Not RBG, nor Wise Latina, nor Roberts nor Alito.  Not Breyer, who was pretty funny.

 

Click, download, read, and enjoy.

 

And the entire Court, save for CT who was silent, just jumped all over the guy and made his life miserable.

And then the entire Court jumped all over the attorney general for Indiana.  All of them.  Except CT.

 

It is an entertaining read.

 

 

 

 

 

 

 

 

 

 

 

An Interesting Amicus Brief

Were states correct when they forced electors to vote according to the popular vote in those states?  Here are the arguments for elector discretion.

 

http://reason.com/volokh/2018/07/02/presidential-electors-can-vote-with-disc

First Amendment as a Successful Defense and an Unsuccessful One

The 9th Circuit’s description of the matter:

When Transportation Security Administration (TSA) officers at Portland International Airport told John Brennan that he needed to undergo additional security screening because he tested positive for explosives, Brennan, in the middle of a TSA checkpoint, stripped naked. When TSA officers told Brennan to get dressed, he refused — three times. After TSA officers had to close down the checkpoint and surround Brennan’s naked body with bins until the police arrived to remove him, the TSA fined Brennan $500 for interfering with screening personnel in the performance of their duties. See 49 C.F.R. § 1540.109 (“No person may interfere with, assault, threaten, or intimidate screening personnel in the performance of their screening duties under this subchapter.”).

Brennan’s core contention is that stripping naked in the middle of a TSA checkpoint is expressive conduct protected by the First Amendment. But Brennan fails to carry his burden of showing that a viewer would have understood his stripping naked to be communicative. See Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 n.5 (1984). Therefore, his conduct is not protected by the First Amendment.

Meanwhile, OR prosecuted Brennan for public nudity. Acquitted by the Judge, as follows, according to The Oregonian:

The judge sided with the defense, which cited a 1985 Oregon Court of Appeals ruling stating that nudity laws don’t apply in cases of protest.

“It is the speech itself that the state is seeking to punish, and that it cannot do,” Circuit Judge David Rees said.

Are both results correct? Neither? One, but not the other?

An “independent”, agenda-setting bureaucracy 10/24/16

There is an op-ed article today in the WSJ, unfortunately behind the firewall, that unwittingly lays bare the unconstitutionality of the regulatory state as it currently exists in the US. The article was written by former Chairman of the SEC, Arthur Levitt Jr., and is ostensibly a critique of Senator Elizabeth Warren’s call for current SEC Chairman Mary Jo White to be removed for failing to implement a “rule” regarding corporate political donations that Warren favors. Levitt correctly calls out Warren for improperly trying to influence the SEC’s “agenda”, but his reasoning reveals the mindset of these unelected bureaucrats and how shamelessly unmoored from the Constitution the regulatory state has become.

Levitt says:

No rule—no matter how merited—is worth the damage that would be caused if the SEC were compelled by political intimidation to write it. That’s not how good regulations emerge, and what’s worse, it would poison the regulatory process for all time. The moment the SEC loses its ability to set its own agenda is the moment it loses its ability to protect the investing public.

The SEC does not operate as a pass-through entity for Congress, merely following congressional direction. Rather, it’s an independent agency, and its chairman is empowered to set the agenda for the agency’s work. This agenda takes shape in many forms—rule makings, speeches and enforcement actions—and must be set by the chairman, not Congress. This is by design.

Say what? The “agenda” of unelected bureaucrats agency “must be” set by themselves and not by the elected members of Congress? Perhaps Levitt would like to point out where in the Constitution such bureaucrats have been granted this rather awesome power. Contrary to what Levitt seems to think, that the SEC is supposed to operate as a “pass-through” entity for Congress, following its direction, is the only way it can operate that would justify its existence.

Levitt goes on to say:

That’s not to say the agency should be free from congressional oversight. Throughout its history, politicians from both parties have sought to influence its work. That’s to be expected, and a good regulator welcomes outside views, especially those coming from elected leaders who write the laws the SEC implements. Ultimately, Congress holds the power to pass laws requiring agency action; and that option is available to Sen. Warren.

But Congress must respect the SEC’s independence, and thus freedom, to focus on a fixed agenda. Once confirmed to lead the SEC, its chairman has a singular goal: To meet the agency’s mandate to protect investors, facilitate capital formation, and ensure fair and orderly markets.

Well, isn’t that generous. Good regulators should “welcome” the “outside” views of elected representatives, the very people who are actually empowered by the Constitution to write legislation.

Levitt is of course correct to inform Warren that if she wants to impose a new law, Congress has the power to do exactly that through actual legislation. But it is precisely the vaguely defined regulatory “mandate” that Levitt himself embraces which allows the likes of Warren to think that she can impose new laws without the hassle of actually going through the constitutional process.

This is an excellent example of how pervasive and shameless the undemocratic, unconstitutional mindset that typifies the regulatory bureaucracy has become.

(This link may or may not work to get the article…not sure: http://on.wsj.com/2e3zIc8)

You be the Judge! 10/26/15

https://www.cadc.uscourts.gov/internet/opinions.nsf/E8CAF3B08FAA9E8185257EE7004E2D02/$file/14-5194.pdf

 

Please read the opinion that I link above.  There is no question but that the decision in the case is a correct one based on the limits of Supreme Court investiture of a person’s right to enforce a remedy for a governmental violation of liberty after the violation has occurred.

However, as a Judge in this case you would have a choice to make, if you thought the 4th and 5th Amendments should provide such a remedy, lest the protections become stripped of meaning.  There are several possible choices here, by the way.  I probably would have recognized the Bivens right as extending to this man in this situation because the FBI intended to use his coerced confession in a criminal proceeding, reading between the lines.  But I would have stayed my Judgment pending Supreme Court review.

What would you have written?

 

Constitutional Authorization

A question for all….

The powers of the congress are layed out in Section 8 of Article I of the constitution, which reads as follows:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;—And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Which of these explicit powers authorizes the creation of (to take just one of many examples) the Environmental Protection Agency and the law/regulations that it promulgates?

%d bloggers like this: