President Trump tweeted he would proceed to fill the vacancy left by Justice Ginsburg’s death without delay. Mitch McConnell said the nominee will receive a floor vote.
Former President Obama suggested the Senate should delay replacing Ginsburg until after the election. However, he himself nominated Merrick Garland in an election year, 2016, and argued the spot should be filled immediately.
Joe Biden has demanded Ginsburg not be replaced until after the election. But he wrote in 2016 President Obama had a “constitutional duty” and should move quickly in that election year to fill the vacancy caused by Justice Scalia’s death.
Chuck Schumer said the vacancy should not be filled until there is a new president. But he argued in 2016 that the Senate should act on Garland’s nomination, tweeting that 17 Supreme Court justices have been confirmed in presidential election years and telling the Senate to #DoYourJob.
The late Justice Ginsburg left us so-called ‘instructions’ that her most fervent wish was that she not be replaced until a new president is installed. Sorry, but there is no ‘dead Justice’ rule requiring anyone to follow her wishes. The only rule is power: the Republican Senate denied Obama a vote on Garland in 2016 because it could, and is proceeding now because it can, and nothing in the Constitution or law prevents it.
As for there only being some 40 days left before the election, Justice Stevens was confirmed in just 16 days after being nominated in 1975. Justice O’Connor’s confirmation only took 33 days and Justice Ginsburg herself was confirmed in just 42 days. They didn’t have Judiciary Committee hearings on Supreme Court nominees until 1916 , so maybe we should just skip the circus altogether and go right to a vote.
All the flip-flops and political expediency aside, here’s what decides the case for me: The Democrats and their allies have spent the last four-plus years trying to run President Trump out of office. They spied on his 2016 presidential campaign and have yet to be brought to justice. They declared they would not accept the results of the 2016 election and resolved to become ‘ungovernable’ - their word, not mine. They rioted, smashed windows, and torched limousines at his 2017 inauguration. They consumed the next two years lying to us about Trump-Russia collusion. They gave up on that, but then lied about the Ukraine phone call and brought what has to be the lamest impeachment case, ever, against a sitting President, in all of American history. They failed miserably. Now they’re back out on the streets rioting for months on end trying to burn down federal buildings and blind police officers with lasers. The rioting stopped being about George Floyd a long time ago. They’ve already threatened to burn everything down and shut down the country if the Supreme Court nomination proceeds now. Hillary Clinton and others have told Biden not to accept the results of the current election, no matter what, and the Biden campaign has lined up 600 lawyers to contest election results in every corner of the land. And who can forget or forgive what happened to Brett Kavanaugh during his confirmation hearing - all those bogus last-minute accusations and the pictures of wild-eyed ignoramuses pounding on the doors of the Supreme Court.
After all this, Donald Trump is supposed to stay his hand? Why should the Left’s refusal to accept a peaceful transition of power in the last election and their atrocious behavior ever since be rewarded with a delay now? If the shoe were on the other foot, you know darn well the Democrats would proceed. Elections have consequences. Refusing to accept election results should have consequences, too.
Trump Administration Proposes Legislation to Hold Online Platforms Accountable for Censoring Content in Bad Faith (Constitution news round-up)
Free Expression: Trump Administration Proposes Legislation to Hold Online Platforms Accountable for Censoring Content in Bad Faith
1A: pouring water on a speaker’s head is not protected speech (Texas Court of Appeals)
1A: video game developers can base characters partly on real likenesses, as long as there are other elements that transform the character (3rd Circuit)
Discrimination: Lawsuit filed after Kroger fires two employees for refusing to wear rainbow symbol against their religious beliefs (LGBT v. religious liberty is the epic struggle right now)
Discrimination: Californians not itching to bring back affirmative action
‘Freedom and not wanting to live under a dictator are outdated.’ Sure, uh huh. Generation Z, wake up!
‘A president exercising the constitutional duty to nominate Supreme Court justices is a high crime and misdemeanor worthy of impeachment.’ Do you hear yourself?
Constitution Not Subordinate to Open-Ended Pandemic Emergency Orders, Pennsylvania Judge Rules (Constitution news round-up)
Federal judge rules Pennsylvania’s shutdown orders are unconstitutional. State to ask for a stay of the ruling while it appeals.
“CDC’s Unlawful, Unconstitutional Moratorium on Evictions” - “It’s not clear whether Congress itself would have the constitutional authority to implement such a sweeping order.”
Education Department proposes rule to implement Trump order protecting campus free speech
14A, etc.: Florida law conditioning restoration of voting rights to felons on payment of all fees, fines, and restitution kosher under various Constitutional provisions (11th Circuit)
1A: Third Circuit holds ban on political public transit ads unconstitutional; no reliable way to distinguish between political and nonpolitical ads
2A: “These 10 Examples of Defensive Gun Use Underscore Second Amendment’s True Purpose”
14A: You be the jurist - would San Francisco’s public/private partnership to give away free money to pregnant black and Pacific Islander women violate the Equal Protection clause? Hints: public/private hybrids are subject to 14A, and you can’t use race as a proxy for special need
14A: in practice, race preferences far more than just a gentle thumb on the scale in college admissions; the impact is profound and getting bigger
Commerce Clause / Necessary & Proper Clause: 11th Circuit panel invalidates Maritime Drug Law Enforcement Act; analysis different for foreign commerce
Electoral College: Steve Forbes on the risks of moving to national popular vote
State Constitution: Wisconsin AG attempting to give control over water wells to state agency in violation of state constitution
Federal judge dissent: yes, we have to follow precedent but, if it’s not directly on point, we have no duty to expand it and are free to follow the Constitution
“most of the framers of the Constitution reasoned that a union permitting states to allow slavery to exist temporarily was better than no union at all”
Shame! Ohio high school suspends, forced to reinstate football players for waving flags honoring police and firefighters who lost their lives on 9/11
Kudos! to U Northern Iowa instructor Thomas Larsen for suggesting federal agencies replace banned critical race theory training with the U.S. Constitution
A Virginia landlord has filed suit against the CDC’s eviction moratorium, alleging a whole host of constitutional violations. But the nub of the case is the landlord’s assertion that the moratorium is “an affront to core constitutional limits on federal power.” Tea Partiers have long been concerned with the aggrandizement of federal power, so we have to ask ourselves whether we are still concerned now that Trump, not Obama, is in office.
The landlord starts off his complaint with the observation that he expected, when he leased the property, that the tenant would pay rent and the landlord could go to court to seek an eviction if the tenant did not. The landlord continues to pay maintenance, utilities, and other expenses on the property. The CDC’s moratorium is unprecedented, not authorized by any statute, and suspends state law in the name of controlling the pandemic.
There are six constitutional violations alleged in the complaint. First, the moratorium violates the landlord’s right to access the courts to seek lawful eviction. The right to access the courts is found in the intersection of the Privileges and Immunities Clause, Due Process, Equal Protection, and the First Amendment Petition Clause. Second, the Due Process Clause of the 5th and 14th Amendments and these other constitutional provisions, not agency declarations, are the supreme law of the land under the Article VI Supremacy Clause. Third, the CDC’s regulation cannot preempt state contract law under the 10th Amendment because the relevant statute generally does not allow CDC regulations to supersede provisions of state law. Fourth, the moratorium offends the Supreme Court’s anti-commandeering doctrine under the 10th Amendment because stopping evictions requires the participation of state courts and state officers to administer a federal program. Fifth, upholding the moratorium would mean that Congress has delegated power to an agency without giving the agency any guiding principles to limit the exercise of that power. In other words, Congress would be asking the CDC to do Congress’ job and legislate, when agencies are only supposed to regulate within boundaries Congress sets. Finally, the CDC is attempting to suspend state laws that govern the eviction process. This attempt by the executive branch to suspend laws enacted by the legislative branch, without the legislative branch having delegated that power to the executive branch, violates separation of powers, or so it is alleged.
The landlord has filed for a preliminary injunction against enforcement of the moratorium, and that’s as far as the case has gotten as of this writing.
Politically, the case looks like a neatly laid trap. Rule in favor of the CDC and you hand Trump a political victory. Rule against the CDC, you make every renter in America mad at you and hand Trump a political victory. Trump wins either way.
A moratorium might sound great for tenants, but what about landlords? What about their property rights under the U.S. Constitution? It’s tempting to say the government should forbid evictions so tenants aren’t harmed, and even go on to say government should pay landlords so they are made whole. But can government at any level really afford to subsidize landlords indefinitely? Obviously not, so the only real solution to this problem is to end the lockdowns and get people back to work as quickly as possible. Government created a situation where lots of people can’t pay their rent, setting off a whole cascade of consequences throughout the economy, starting with landlords who, as a result, can’t meet their own obligations. With the number of COVID hospitalizations dwindling, it’s time for government to get out of the way and let life get back to normal.
Kitchen Sink: CDC eviction moratorium challenged on supremacy clause, nondelegation, anti-commandeering and other grounds
4A: 9th Circuit rules NSA mass telephone record surveillance program revealed by Edward Snowden was illegal
Discrimination: second federal judge rules against Trump administration rollback of Obamacare LGBT protections
Discrimination: 4th Circuit panel discovers a right for transgenders to use the bathroom of their chosen gender identity; things are not looking good for sanity on this issue
1A: Demonstrators have a right to speak from traffic medians ((10th Circuit)
1A: Austin’s sign code against digitization of existing billboards is not a commercial speech restriction, it is content-based discrimination which fails under strict scrutiny
1A: religious institutions can fire “ministerial employees” based on sexual orientation, but cannot harass them with a hostile working environment (7th Circuit)
2A: Circuits now split on confiscation of gun magazines, setting up possible Supreme Court case
8A: keeping a death-row inmate in solitary confinement for 33 years is cruel and unusual punishment (3rd Circuit)
8A: refusal of prison authorities to give all inmates with hepatitis C an expensive new treatment regardless of the severity of their condition is not cruel and unusual punishment (11th Circuit panel)
Shame! Washington and Lee University offers Marxist course on ‘How to Overthrow the State’. Let’s start with your faculty lounge, shall we?
Dangerous National Popular Vote Movement Trying to Cancel Minorities and Small States (Constitution news round-up)
Documentary defends Electoral College from anti-republic National Popular Vote movement; NPV would run roughshod over minorities and small states
Separation of Powers: D.C. Circuit panel rules there is no statute giving Congress the power to enforce a subpoena against former White House counsel Don McGahn
Discrimination: Washington state loses bid to block Trump administration dismantling of LGBT protection rule; state can’t show how it is harmed (W.D. WA)
5A: Gitmo detainees, as aliens detained outside the sovereign territory of the U.S., do not have due process rights (D.C. Circuit)
6A: Whose right to jury trial is it? Government consent required for defendant to waive right to jury trial and have a bench trial in federal cases, but not when there are extraordinary circumstances like a pandemic
14A: enhancing penalty just because a defendant belongs to a gang violates substantive due process - “guilt is personal” (Arizona Supreme Court)
The Framers did not put a right to vote in the Constitution because they distrusted democracy and wanted to safeguard other rights from mob rule
Shame! Protesters chant ‘Death to America’. We have the ayatollahs for that. What do we need you for?
Shame! D.C. task force tries to cancel the Washington Monument and Jefferson Memorial, gets their heads handed to them after fierce backlash
There’s been a flood of COVID-related litigation since I last reported to you on this topic in May. Tonight, we look at three cases - one in New Hampshire and two about reopening schools in Florida and California.
You may recall that, nationally, the lockdowns were originally justified as ‘flattening the curve’ and keeping the hospital system from being overwhelmed. The hospitals never did get overwhelmed and the rationale for the lockdowns started shifting to waiting for a vaccine, finding a cure, and keeping everybody safe forever.
In New Hampshire, Mary Rivard filed suit contesting the extension of the Governor’s COVID restrictions that kept her business, a hair salon, unable to open profitably. The case is interesting because Rivard argued the original justification for the lockdown had disappeared and, therefore, the Governor’s order was unconstitutional. At a court hearing, Rivard’s lawyer argued further that the number of fatalities, hospitalizations, and confirmed cases in the state did not meet the threshold for the Governor to declare a state of emergency, and that the pandemic turned out not to be as severe as predicted. The state argued the Governor was following the advice of public health professionals and the virus was still around causing problems. The case was filed in May and heard in June. There has been no decision.
In California, the state Supreme Court took the unusual step of agreeing to hear two lawsuits about reopening schools without waiting for the cases to work their way through the lower courts. The state’s high court has “original jurisdiction”, in cases of “great public importance that must be promptly resolved.”
One of the cases was filed by the Orange County Board of Education. The Board is arguing that the state’s actions restricting school reopenings violate the Equal Protection Clause of the California state constitution. The crux of the argument is that schools in counties still on the state’s coronavirus watch list face more restrictions on reopening than schools in counties that are not on the list. An attorney for the schools said at a press conference, “The California Constitution has an equal protection clause that says all kids… kids with special needs, minority children, poor children, kids from single parent families; they all deserve an equal education.” The lawsuits are asking the court to give schools and parents more discretion to decide what to do. The state was supposed to respond to the lawsuits this past Friday and a decision could be handed down as early as this coming week.
In Florida, the state ordered schools to reopen brick-and-mortar classrooms by the end of August, but Florida’s largest teachers union and the NAACP sued, claiming it was not safe to do so. This past Monday, a Florida judge agreed it was not safe and issued a temporary injunction allowing local school boards to decide whether to reopen. The judge wrote that the state’s order is “unconstitutional to the extent that it arbitrarily disregards safety, denies local school boards’ decision making with respect to reopening brick-and-mortar schools, and conditions funding on an approved reopening plan with a start date in August.” The state filed a notice of appeal right after the decision. Florida’s Education Commissioner said the lawsuit is frivolous and harms parents who want their kids back in school.
All three cases I talked about tonight are still up in the air. Stay tuned.
A professor and the Arizona community college system he teaches for won an important victory for academic freedom this past week.
Professor Nicholas Damask was teaching a course on world politics that included some material about Islamic terrorism. He assigned a text that discussed Islamic terrorism and he asked a question about the text on a quiz. The quiz asked, among other things, whether the primary meaning of jihad is understood in the Arab world to be violent warfare or just a spiritual struggle. A Muslim student was offended by the text and the quiz and ran straight to CAIR [the Council on American-Islamic Relations]. CAIR filed suit in federal court on the student’s behalf.
A federal judge rejected all of the plaintiffs’ arguments and dismissed the case. The judge’s reasoning is instructive.
The student’s first argument was that Professor Damask’s actions as the government violated the Establishment Clause of the First Amendment to the U.S. Constitution by expressing disapproval of a religion. The court rejected this argument, saying that some disapproval is not enough under long-standing case law to make out a constitutional violation; it must be the government’s primary purpose to inhibit the practice of a religion, in this case Islam, to violate the Establishment Clause. But, here, the primary purpose was to teach a course in world politics. The material on Islamic terrorism was only one module out of six, and it was presented in the context of explaining terrorism, not criticizing religion. Moreover, the plaintiffs had cherry-picked the material in presenting their case; the Professor had also included a quote from another scholar to the effect that only Muslim extremist groups interpret Islam to condone terrorism.
The student’s second argument was that the government’s actions violated the First Amendment Free Exercise Clause by forcing him to denounce his religion in choosing the correct answer about the primary meaning of jihad on the quiz. The court rejected this argument, also, saying the requisite coercive effect was missing. The quiz merely asked the student to demonstrate his understanding of the course material, not to adopt any particular viewpoint. The court cited a prior case for the proposition that course material that merely conflicts with a student’s religious beliefs does not, by virtue of that fact alone, violate the Free Exercise Clause. The prior case rejected the argument of Christian students that the practice of their religion had been burdened by having to read about gay couples for a class. There’s a difference between merely exposing students to views contrary to their beliefs, on the one hand, and actually interfering with the practice of their religion on the other, the court said. Mere exposure to contrary attitudes was deemed not to interfere with the Christians’ beliefs in the prior case or with the Muslim’s student’s beliefs in the Arizona case.
That’s it for the court’s First Amendment analysis. There are three other issues worth mentioning.
First, the judge tossed CAIR out of court on separate grounds, ruling CAIR lacked standing to be there. It could not show any injury to its organization that could get it through the courthouse door. Its claim that it had to divert resources to deal with this case was unproven, and the fact that it had to hire a religious scholar to craft arguments about Islamophobia for this case was nothing beyond the kind of ordinary advocacy CAIR undertakes every day. No injury, no standing.
Second, the court found that prior cases are in disarray so that Professor Damask was not on notice he was possibly running afoul of the Constitution. There were no prior cases clearly establishing beyond debate that what he was doing violated the Muslim’s student’s constitutional rights. Without such notice, the court said that Professor Damask would have had qualified immunity even if the plaintiffs had been able to make their constitutional arguments stick.
Finally, let’s go back to the part of the court’s opinion about government action that merely offends religious beliefs not violating the Free Exercise Clause. This is important for what it implies for free speech regarding Islam. The Muslim student in this case was essentially saying he was offended by the contrary material. That’s the crux of the argument Muslims make in wanting to shut down all criticism of Islam. They want to stop all speech they find offensive in this regard, even if the content of the speech is true. Under sharia law, libel is anything that insults Islam or causes any Muslims to take offense about their religious beliefs. Truth is not a defense to libel in sharia law, as it is under American law. Muslims around the world feel perfectly justified in rioting in ‘Days of Rage’ if they are offended by what a speaker said, even if what the speaker said was true. They are essentially saying we should all keep our thoughts to ourselves so Muslims don’t go on a rampage. We call that the ‘heckler’s veto under American concepts of free speech and it’s unacceptable under our constitutional jurisprudence. Unfortunately, European speech codes have moved in the direction of shutting down speech that offends Muslims for any reason. Let’s hope that European speech codes never come to America. I’m glad the judge in the Arizona case came down on the side of saying that, even if Muslims are offended by what is said about their religion, it does not mean that the Constitution has been violated or that Muslims get to shut down all debate about Islam in America.
2A: California ban on hi-capacity magazines holding more than 10 rounds unconstitutional (9th Circuit panel)
1A: Trump appeals to Supreme Court to allow him to block users on Twitter
6A: Scott Peterson death penalty overturned; dismissing jurors who disagree with the death penalty but say they could vote to impose it violated Peterson’s right to an impartial jury in the penalty phase
1A: Project Veritas sues to vindicate rights of undercover journalists in Oregon; secret recording currently criminal in the state
Amendment: activist nets cool $10M from Twitter CEO to push constitutional amendment to “prohibit racism”, i.e., attack freedom of the press, association, and speech
1A: 4th Circuit holds federal anti-riot act partially constitutional - OK to prohibit traveling or organizing for actual incitement, but not OK to prohibit speech that promotes or encourages violence in general
1A: San Diego stops enforcing 1918 ordinance prohibiting “seditious language” as process to repeal it begins; clearly unconstitutional under modern Brandenburg standards
1A: 6th Circuit greenlights case of Cleveland EMT who was fired after posting comments about the shooting of 12-year-old Tamir Rice; matters of public concern are protected
1A: Ferguson grand juror loses First Amendment challenge to state’s grand jury secrecy law (8th Circuit)
1A: chancellor of ‘Dear Old CU’ refuses to cancel visiting scholar law prof for writing op-ed questioning Kamala Harris natural born citizenship
1A Petition Clause: it’s unconstitutional to penalize nonfrivolous litigation
4A: 1st Circuit upholds affirms conviction for conspiracy to violate civil rights and use excessive force in deliberately injuring man arrested on DUI charge
In March, I told you about a book raising the troubling question of whether Muslim politicians can truly follow their oath of office to support the U.S. Constitution. The question arises because sharia law conflicts with the Constitution in so many ways. The book is Islamic Doctrine Versus the U.S. Constitution: The Dilemma for Muslim Public Officials, written by Stephen Kirby and published by the Center for Security Policy.
Since March, I have been working with the author and other activists on the Muslim Oath Project to bring attention to this issue. The Muslim Oath Project resides on my personal website, Liberato.US. Dr. Kirby sent questionnaires to 233 Muslim office-holders and candidates across the country asking whether they would express support for the Constitution. Only 16 expressed support for our founding document. That means 93 percent of all Muslim politicians contacted would not.
Which leads to the following obvious question: If Muslim politicians won’t express support for the Constitution, why should they get to lead us? Remember: Muslims believe sharia law is the supreme law of the land, above any human law or Constitution. Evidently, 93 percent of Muslim politicians in America prefer a code that imposes amputation for theft, stoning for adultery, and death to apostates to a document which limits the powers of government and guarantees individual rights. A cancer is growing in the body politic; the list of Muslim office-holders is very long in states like New Jersey, Michigan, and Minnesota. Virginia, New York, Illinois and several other states are not far behind.
Dr. Kirby, with the help of other activists, has just completed a 10-part video series exploring the conflicts between sharia law and the U.S. Constitution. The video series is also on Liberato.US. Each video is about seven minutes long and explores a different constitutional issue like the oath of office, slavery and the 13th Amendment, freedom of speech, freedom of religion, and cruel and unusual punishment.
Dr. Kirby and others have been called racists and Islamophobes for raising these questions. Islam claims to be above all criticism, even criticism based on constitutional grounds. But, as Dr. Kirby likes to point out, CAIR itself says, "It is not appropriate to label all, or even the majority of those, who question Islam and Muslims as Islamophobes." (Documentation here.) Dr. Kirby and those helping him are not engaged in rants. Every point is factual, often from Islamic sources considered authoritative by Muslims themselves. Not only is everything Kirby says factual, but the material examines some of the most fundamental questions that ought to concern every American - Is the U.S. Constitution the supreme law of the land or not? Are we to be governed by a theocracy where the mullahs control every aspect of your life, right down to which hand to use when you’re going to the bathroom? Do we really want a country where there is no free speech for anybody or no equal protection of the law for women? Where barbaric punishments like chopping people’s hands off and stoning them to death are allowed by law? Or do we want to continue the American Idea with limited government and individual rights, as set forth in the Constitution? This is not a rant; this is exactly the ground that we as Tea Partiers need to be fighting on.
The final video is a call to action. Ways to get involved can be found on the Muslim Oath Project pages. Maybe you think it doesn’t hurt bad enough yet, but the problem with waiting until it does is, by that time, it will be too late. Tackling the situation now gets my vote.
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