2A: Supreme Court dismisses New York gun rights case as moot; the laws in question restricting the transport of guns were changed
2A: federal judge temporarily blocks California’s deliberately burdensome ammunition background checks
2A: COVID order puts outrageous Maryland case back in the spotlight - police shoot sleeping man through his window in unprovoked attack; allege he possessed firearms despite juvenile conviction, but can’t produce the case
Emergency Powers - Attorney General William Barr warns states the Constitution is not suspended in times of crisis and not to overreach in their emergency pandemic measures
Due Process: Sixth Circuit makes up a ‘constitutional right to literacy’ (i.e., ‘a state-funded education of a certain quality’)
14A: 10th Circuit rules Kansas proof-of-citizenship law unduly burdens right to vote
14A: 8th Circuit upholds Iowa law requiring certificate of need from proposed new surgery centers but not from existing centers or hospitals
Discrimination: Muslim high school teacher in New Jersey was rightly fired for his anti-Semitic views ("Jews are Like a Cancer" and "U.S. Planned, Carried Out 9/11"), personal slurs notwithstanding (3rd Circuit)
Due Process: Judge starts discrimination trial with a dog-and-pony show about great civil rights leaders in history and ‘bending the moral arc of the universe’; California appellate court reverses, citing lack of an impartial tribunal
21A,Commerce Clause: 6th Circuit upholds Michigan law allowing in-state but not out-of-state alcohol retailers from shipping directly to consumers
Electoral College: National Popular Vote supporters assume the two-party system would continue unaffected, but NPV would splinter system into numerous special-interest parties
New book: “Free Speech and Liberal Education: A Plea for Intellectual Diversity and Tolerance” - ranges from cancelled events to academic freedom and beyond; discusses the classical liberal view v. social justice, progressive bullying, and censorship.
Yo, Progs! When was your “living, breathing Constitution” ratified? When did We the People consent to living under your silly little subjective standards?
Recently, President Trump threatened to adjourn Congress in order to make recess appointments to fill vacant posts in his administration, citing constitutional chapter and verse as authority to do so. While there have been plenty of recess appointments in our history, no President has ever actually adjourned Congress before to make them. Not surprisingly, legal scholars disagree about the constitutionality of the President’s threatened course of action. Two constitutional provisions and a Supreme Court case are at issue.
First, Article II, Section 3 gives the President the power to adjourn Congress for as long as the President wants if the two Houses of Congress disagree “with respect to the Time of Adjournment”. So if the Senate adjourns and the House votes to disagree, or fails to vote at all, the President can adjourn Congress. That may sound open and shut, but it’s not.
We have to look at Article I, Section 5 which effectively says either chamber can adjourn for up to three days without consent of the other during a session of Congress. Any longer than three days, during a session of Congress, and the other chamber must consent.
So what’s to prevent Senate Majority Leader Mitch McConnell from adjourning the Senate for eight days, Speaker of the House Nancy Pelosi refusing to consent, and President Trump adjourning both houses of Congress for eight days under Article II, Section 3 in order to fill the roughly 250 vacancies in his administration for which the Senate has not given its advice and consent?
The answer is: The Supreme Court, that’s what. In a 2014 case [NLRB v. Noel Canning], the Supreme Court started by saying, “The Recess Appointments Clause empowers the President to fill any existing vacancy during any recess—intra-session or inter-session—of sufficient length.” What is “sufficient length”? Therein lies the rub. A three-day recess was at issue in the case, and the Court could find no “single example of a recess appointment made during an intra-session recess that was shorter than 10 days.” Absent “unusual circumstances” like a national catastrophe, a three-day intra-session recess is too short for a President to invoke the Recess Appointments Clause, the Court ruled. Justice Scalia wrote a separate opinion, unsuccessfully arguing the President’s need to fill a particular slot can be just as urgent as a national catastrophe.
So, once again, we see a Supreme Court that has gone beyond the text of the Constitution, filled in some blank spaces with whatever formula struck its fancy that day, and achieved a result that is not required by the plain language of our founding documents. The formula that day was historical practice - no recess appointment has ever been made in our history during an intra-session recess shorter than 10 days. But the Court doesn’t always like history. A lack of history didn’t prevent the Court from making up fundamental rights to abortion and gay marriage, did it? It’s called results-oriented jurisprudence - pick the result you want, then pick the formula that will get you there. History one day, public opinion polls the next.
Hate to break it to you, folks, but there’s entropy in the law, and the result is that duly elected officials have their hands tied by the courts more than they should, and your vote doesn’t mean as much as it should, because unelected people in black robes like to make stuff up and overstep their role.
Two months ago [Constitution Minute - Feb. 23, 2020], I told you about the emergency powers states have to deal with pandemics. Subsequently, I went on the radio and said that, if Americans really feel governments have trampled on their rights, they should sue in court. Tonight, we’ll take a quick trip through some of the court cases where Americans fighting for their rights have done exactly that. Some have been successful and some have not.
But, first, a refresher. States have broad powers in emergencies to protect the health, safety, and general welfare of their inhabitants. However, those powers are not unlimited. Constitutional protections must be observed. The government must have valid reasons to use health emergency powers in the first place - it can’t act arbitrarily; the health measures imposed must be reasonably designed to achieve health objectives; the benefit must outweigh the burdens placed on people; and authorities must avoid harming people in the process.
Several court challenges went down in flames in Pennsylvania. The state’s Supreme Court rejected eminent domain, due process, equal protection, and First Amendment free speech and rights of assembly challenges to business closures and other emergency measures. The court said the closures are an appropriate use of emergency powers and are only temporary. Businesses get a post-closure hearing to challenge designations as non-essential and that is enough for due process. Political campaigns have other ways to get the word out, even if their offices must stay closed during the pandemic.
Texas lost its bid to completely close abortion clinics as non-essential for the duration. A federal appeals court ruled the clinics must be allowed to stay open to dispense abortion pills and provide abortions to women who would otherwise be too far along for abortions when the state’s emergency order expires. Sounds like the court decided to cut this baby in half - literally.
Church-goers lost their challenge against the state’s order limiting the size of church gatherings on Easter Sunday to ten people in Kansas.
A number of other court cases have been filed or threatened, but I haven’t seen rulings yet. A Wisconsin teen sued a local sheriff for denying her free speech rights by threatening to arrest her for disorderly conduct for an Instagram post where she claimed she had beaten COVID-19. Her doctors told her it was likely she had the virus and she had tested negative because she missed the testing window.
Michigan residents filed suit against the stay-at-home order issued by Governor Gretchen Whitmer, whom Trump calls ‘that woman from Michigan’. The Governor was also sued for criminalizing the free speech activity of peaceful, pro-life protestors. A legal group called on the Governor to lift her ban on homeschooling. It looks like faulty drafting, but the executive order bans all in-person instruction of all children outside of public schools, which are closed. Parents have a fundamental constitutional right to raise and educate their children, the group said.
Citizens in Massachusetts are suing over that state’s designation of gun shops as non-essential. A gun rights group in Virginia sued over Governor Infanticide’s closing of indoor gun ranges as non-essential. A constitutional law professor at the University of Virginia doubts this challenge will succeed. “Closing gun ranges doesn’t violate anyone’s right to own a weapon,” he said. “It’s a reasonable regulation in the space of a major public health crisis.” VCDL, the gun rights group, counters that the gun ranges allow people to sharpen their skills, and observe appropriate social distancing because there are barriers between lanes.
Which brings us to Mike Huckabee, who sued in federal court in Florida against a county social distancing order that closed his private beach. He argues this is a taking of his property in violation of the 5th Amendment and points out there is less chance of transmitting coronavirus on a private beach than there is going to the grocery store. The measure, as applied to private beaches, doesn’t appear calculated to achieve a health objective, a legal standard I mentioned at the outset.
The sheriffs have been interesting to watch in all of this. Four sheriffs in Michigan said they would not strictly enforce the stay-at-home order. A sheriff refused to enforce orders fining COVID carriers who enter Maine from out of state. “This is not Nazi Germany or Soviet Russia where you are asked for your papers!,” he wrote. Sheriffs in Los Angeles and North Carolina allowed gun stores to reopen after being sued.
I’ll close with my favorite ruling, this one out of Kentucky where a federal judge ruled the mayor of Louisville could not ban Easter drive-in church services. “On Holy Thursday, an American mayor criminalized the communal celebration of Easter,” the judge wrote. “That sentence is one that this Court never expected to see outside the pages of a dystopian novel, or perhaps the pages of The Onion.” The mayor had argued that drive-in church services weren’t “practical or safe” for the community. However, the judge noted that drive-thru restaurants and liquor stores were still allowed to operate. Senator Rand Paul tweeted, “Thank God for a judge who understands the First Amendment prevents the government from prohibiting the free exercise [sic] of religion.”
Art II, Sec 3: Can a President force Congress to recess? Yes / No
6A: Supreme Court requires unanimous jury verdicts for serious offenses in state prosecutions
4A: Michigan judge allows police to arrest and jail anyone suspected of coronavirus; order has blank line to fill in the person’s name. Sure looks like an unconstitutional General Warrant.
1A Religion: New York appeals court rules a father cannot be compelled to conform to Hasidic Jewish norms during visitation with children
1A Religion: “So help me God” in naturalization oath is not unconstitutional (1st Circuit)
1A Religion: banning atheist group’s display at Texas state capitol showing Founders around a manger containing the Bill of Rights likely unconstitutional (5th Circuit)
6A: 6th Circuit orders new trial in Michigan murder conviction because witness who said the defendant pawned a ring belonging to the victim died before testimony and cross-examination (Confrontation Clause)
1A: Janus does not apply to a private organization funded by taxes and made up of municipal officials; their speech is ‘government speech’ (7th Circuit)
1A: Mississippi appeals court overturns conviction and 5-year sentence, strikes down underlying statute, in case of Facebook post accusing pastor of sexual misconduct
1A: two high school seniors expelled and won’t be allowed to graduate for off-campus racially disparaging video using the n-word (yes, this is disgusting, but it is protected speech)
Free Expression: police department orders officers to start using preferred transgender pronouns (maybe justifiable on the job, but will discipline follow free expression off the job?)
2A: pandemic-panicked gun-buying libs get angry when encountering their own gun control laws
4A: limited use of automated license-plate readers does not on the facts presented constitute a ‘search’ under the Fourth Amendment
“To conclude that the general welfare clause authorizes endless transfers among various groups and individuals is literally to turn the Constitution upside down.” (Richard Epstein)
Shame! Black activist does not believe in the inherent goodness of America - “I am too black for that”. This is an insult to every black who is glad they live in America, the greatest country the world has ever known. (h/t Dennis Prager)
Kudos! to the 11-year-old boy who plays the Star-Spangled Banner on his trumpet every evening to cheer his neighbors during the pandemic. #InherentGoodness
States Must Be Even-Handed Towards Religion in Coronavirus Restrictions (Constitution news round-up)
1A Free Exercise: Federal judge rules Louisville cannot ban Easter drive-in church service
1A Religion: HUD contractor seizing Bibles from public housing in defiance of Constitution and HUD rules
1A,5A,14A: Pennsylvania Supreme Court rejects takings, due process, equal protection, speech, and assembly rights challenges to state’s COVID-19 restrictions
Trump says Apple/Google contact tracing technology for coronavirus raises “constitutional problems”. Probably not. Contact tracing has been used for many years for many diseases.
Chinese company claims 95% accuracy in facial recognition software for people wearing masks
Shame! Governor Newsom keeps calling California a ‘nation-state’. Well, then I guess he doesn’t’ need our tax money.
There’s nothing quite like the pretzel logic of the Left. Take the kernel of a good idea - the equal protection clause of the 14th Amendment - and twist it into something completely unrecognizable and monstrous. Thus we arrive at the Labor Department’s Office of Federal Contract Compliance Programs (OFCCP) which often takes enforcement actions against the same employer for discriminating against both men and women, or against and in favor of Asians. Wow, that’s some pretzel.
Not only that, OFCCP is judge, jury, and executioner in flagrant violation of separation of powers principles laid down by our Founders in the U.S. Constitution. OFCCP investigates, prosecutes, and judges cases entirely in-house.
Equal protection has gone off the rails, thanks to disparate impact theory, a numbers game that purports to find discrimination purely on the basis of statistics, that is, unequal outcomes across various demographic groups. No actual evidence of discriminatory intent is required. Intent is simply proclaimed if men are paid more than women regardless of other factors, or if Asians are hired in greater numbers than their percentage of the population.
OFCCP brought a complaint against Oracle alleging pay discrimination against female, black and Asian employees, then demanded 85 million datasets from Oracle in discovery in the case. OFCCP is notorious for other abusive practices, such as refusing to show the contractors it sues its statistical findings or even its methodology. OFCCP’s analysis is simplistic, for example, treating all employees with the job title ‘software engineer’ alike even though the work of a software engineer assigned to databases is doing very different work from one who is developing artificial intelligence. OFCCP’s simple-minded theory also disregards education, experience, personal job choices, the number of hours worked, and flexible work schedules in its quest to level the workplace and make everyone equal.
Oracle has counter-claimed, arguing the separation of powers issue, among other things. There is also a Due Process issue with having a self-interested tribunal that is not impartial or neutral. It’s a constitutional problem if you make the decision or set the punishment in a case your colleagues brought in the first place.
The complaint against Oracle was brought two days before President Trump was inaugurated, but continues under his administration. The Trump administration has talked about shutting down OFCCP and transferring its functions to the EEOC. The administration also proposed, over a year ago, to uproot disparate impact theory from all federal agency adjudication, but the proposal doesn’t seem to have gone anywhere.
But it should. As I wrote in a Constitution Minute in March 2019, disparate impact theory is a concoction of left-wing bureaucrats that “turns the presumption of innocence on its head and is manifestly unjust. Not every statistical difference is about race. The Constitution is supposed to be about equal protection, not back-door redistribution or guaranteeing equal outcomes.”
10A: Presidents lack the authority to order a national quarantine
Supreme Court followed rule against federal courts imposing last-minute changes on elections in refusing to extend period for absentee balloting in Wisconsin
4A: Supreme Court OK’s warrantless traffic stops based on expired plates instead of a moving violation
Discrimination: Supreme Court makes it easier for federal workers over 40 to sue for age discrimination, but relief limited if age not the only factor
1A Religion: 40 amicus briefs filed in Supreme Court case testing whether Catholic school teachers are barred by the ‘ministerial exception’ from bringing employment discrimination claims against their employers
1A Religion: Supreme Court turns away Catholic Church challenge to transit system ban on religious advertising
1A Viewpoint Discrimination: student group sues Georgia Tech for refusing to reimburse expenses of bringing pro-life Alveda King to speak
14A Due Process: Part of New York’s new rent control law, applied retroactively, is unconstitutional (New York Court of Appeals)
1A,4A: proposed EARN IT Act offends First and Fourth Amendments in several ways
Free Expression: Pakistan wants UN to label all organizations critical of Islam as ‘terrorists’
2A: Pandemic bringing out first-time liberal gun-buyers
4A: Fourth Circuit tells trial court to explore constitutionality of ‘cell-site simulators’ after Baltimore police track down attempted murder suspect with the new technology
“Medicare Is Facially Un-Constitutional” - “giving up essential liberty for an illusion of security”
The whole nation, it seems, is homeschooling to one degree or another during the pandemic. Some commentators hope this will cause people to have a new appreciation for the virtues of educating their own children. But the Left, true to form, is still trying its best to torpedo homeschooling and corral every child in America into government indoctrination centers, AKA the public schools.
A conference scheduled for June at Harvard will discuss how best to regulate what organizers call the “controversial practice” of homeschooling. One of the organizers has called for a "presumptive ban" on homeschooling, while another claims there is no such thing as "parental rights". Thus, the conference will feature the authoritarian Left in full cry.
As Tea Partiers know, the word ‘education’ does not appear in the U.S. Constitution. Supreme Court cases go part of the way towards establishing a fundamental right to homeschool under the Due Process clause, but the Supreme Court has never squarely ruled on the issue. Let’s leave aside the Amish case from 1972 [Wisconsin v. Yoder], upholding their right to homeschool based on First Amendment free exercise of religion. That was a unique set of circumstances, and later cases have denied free exercise claims by other religious groups.
Due Process analysis starts with a 1923 case [Meyer v. Nebraska] knocking down a state law prohibiting, for example, teaching children in German in a parochial school. The second case, in 1925, discussed a compulsory public school attendance law. [Pierce v. Society of Sisters of the Holy Names of Jesus and Mary]. The case is interesting because it contains some very strong language affirming parental rights: “The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” It’s great the Court said children are not state property, but the case, like the one before it, involved parochial schools, not homeschooling. Since then, many court rulings have supported the right of parents to provide home education.
But here’s the problem: homeschooling is theoretically only one Supreme Court Justice away from being abolished entirely. In the event of a 4-4 tie, a single swing Justice like an Anthony Kennedy could end homeschooling in this country forever. It would be a bad decision. It would fly in the face of the accumulated weight of judicial opinion in favor of homeschooling as a fundamental right, but we have seen the Supreme Court make bad decisions before. How about rounding up every American of Japanese descent during World War II and sticking them in camps without any real proof they threatened national security. Or how about the time we Tea Partiers were on the steps of the Supreme Court listening to Chief Justice John Roberts upholding Obamacare as a tax right after he had just finished saying it was not a tax. The Supreme Court can turn night into day with the stroke of a single Justice’s pen.
Obergefell, the same-sex marriage case, showed us, if we did not already know, that the Supreme Court sometimes responds to shifts in public opinion. It has no trouble engaging in social engineering and declaring what is good public policy for the little people, even if large swathes of the population are not on board. So what happens to homeschooling if five unelected Supreme Court Justices wake up one day and decide the country would be better off if every child were herded into government indoctrination centers and taught to become good little socialists?
Which brings me to the point: if you don’t want the Supreme Court to do away with homeschooling one day, then roll up your sleeves and get to work fortifying public opinion in favor of homeschooling and preventing the authoritarian Left from getting its grubby little mitts on the minds of every schoolchild in America.
Coronavirus Restrictions and the Constitution (Liberato.US on the Rob Schilling Show - start 11:57)
10A: First Circuit rules Trump administration can’t impose conditions on law enforcement grants without congressional authorization (decision leaves contrary 2nd Circuit opinion an outlier)
10A: Tennessee asks Supreme Court to rule feds can’t force it to pay refugee resettlement costs after state exercised its right to drop out of the program
10A: 5A Eminent Domain: federal judge requires U.S. to justify how federal bump stock ban falls within state police power exception to requirement government must pay just compensation upon taking property
Discrimination: Supreme Court raises bar in contract discrimination cases - plaintiffs must show race was the determining factor, not just a partial motivation, for refusal to award contract (Comcast case)
Discrimination: Justice Department sides with girls who don’t want to be forced to compete against transgender boys
Discrimination: Idaho passes law against forcing girl athletes to compete against transgender boys
5A: Supreme Court rules Kansas does not have to adopt the ‘moral incapacity’ flavor of insanity defense to comport with Due Process
11A: Supreme Court rules state sovereign immunity trumps copyright in case against North Carolina for using video of Blackbeard pirate ship recovery without the videographer’s permission
1A: Tesla owner fights to keep ‘FKGAS’ license plate state now deems offensive
Free Expression: Comic Ricky Gervais sharing why he doesn’t apologize for his jokes - “You mustn’t, because that’s the end. The end of satire and the erosion of freedom of speech based on people’s feelings will have a catastrophic effect.”
1A: ICYMI 11th Circuit rules Pensacola cross can stay, in light of Bladensburg cross case (‘Lemon test is dead for religious display cases’)
4A: police can conduct Terry stops for misdemeanors (6th Circuit)
4A: Inching towards ‘show me your papers’ tyranny? Police can demand identification and run warrant checks during Terry stops (7th Circuit)
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