Federal judge rules Trump can’t block Twitter followers in opinion with broad implications (Constitution news round-up)
1A: federal judge rules Trump can’t block Twitter followers in opinion with broad implications designating his account a public forum
1A: Trump Twitter ruling is uncharted territory – should the non-Left get its own forums or work to declare all of social media a public forum where viewpoint discrimination is not allowed?
Penumbras and Emanations – Supreme Court lets Arkansas abortion restrictions stand for the moment, but the case is not over
State Constitutions: California appeals court lets stand lower court ruling knocking down state’s assisted suicide law; confusion reigns as case proceeds
State constitution figures in state lower court striking down California’s assisted suicide law as outside the scope of a legislative special session
Privacy: federal judge rules NRA must name its Jane and John Doe teenage plaintiffs challenging new gun sale age restriction; constitutionally-embedded presumption of openness in judicial proceedings outweighs threat of harassment
1A: basic point – the NFL is not the government, so the First Amendment doesn’t apply to its football games.
1A: ICYMI – Obama judges sidestep Supreme Court precedent in finding forced dues for union advocacy constitutional (p. 6)
Free Speech – Britain arrests Tommy Robinson for telling the truth about a Muslim grooming gang facing child rape and other sex charges
Free Speech – CAIR Michigan forces resignation of local official critical of Islam.
1A Religion: federal appeals court dismisses challenge to ‘In God We Trust’ on currency, but lingering statutory question may prompt Congress to act to save motto.
4A: Supreme Court rules ‘automobile exception’ to the 4th Amendment doesn’t apply if the car is in the driveway (Collins v. Virginia)
4A: federal appeals courts now disagree on border cell phone searches, but the Supreme Court might not want to resolve the circuit split
Takings: South Africa’s ruling ANC to test whether farm land can be confiscated without compensation under existing law instead of seeking a constitutional amendment. So superior to our own Constitution, right RBG?
14A Equal Protection: Affirmative action discriminates against Asian students, comparing Harvard v. Cal Tech enrollment shows
14A Equal Protection: federal court allows Virginia transgender student to sue for use of preferred bathroom on theory ‘gender stereotyping’ already prohibited by 1988 Supreme Court case
14A Equal Protection: Pennsylvania students lose appeal to keep transgenders out of their bathrooms and locker rooms; losing parties weighing their options.
14A Due Process: locales relying on heavy ticketing for nuisance violations to raise revenue spawn due process concerns – do we really want financially self-interested gangster government?
Some state high courts issue advisory opinions without a case before them – should the Supreme Court?
Americans should remember we are not ruled by judges. Courts have redrawn an electoral map, ordered a tax increase, released prisoners due to ‘overcrowding’, etc. Not good.
Hey hey ho ho, legal positivism has got to go. Three cheers for natural law – “the separation of law from morals violates human nature”
Shame! New York Jets CEO will pay the fines for players who protest the national anthem. #ToolOfTheLeft
Appeals court green lights Planned Parenthood case against undercover baby parts videographers (Constitution news round-up)
1A: Planned Parenthood case against undercover baby parts videographers survives motion to dismiss; case may proceed (9th Cir.)
10A: Hanford becomes ~30th California city to rebel from state’s sanctuary laws
5A: New book by property rights activist Tom DeWeese exposes the reality of sustainability policy – massive government intrusions (energy, water, public transit, etc.)
1A: blocking political attack ads before they air - preventing libel or unconstitutional prior restraint? Courts don’t agree.
1A: college caves after public interest lawyers warn over removal of Bible verse from student commencement speech. When will schools ever learn that free speech trumps their desire not to offend?
1A: Is there a "private concern" exception to the First Amendment leaving true statements (‘she cheated on me’) unprotected?
Free Speech: Swedish author could be prosecuted for hate crimes after publishing children’s books satirizing sharia punishments
4A: Nebraska Supreme Court allows ‘information stop’ without articulable suspicion of car leaving what police believed to be a drug house
5A Eminent Domain: officials have to notify property owners of a blight designation, but don’t have to tell them they only have 30 days to object
14A Equal Protection: CAIR challenging Trump administration’s assertion of state secrets privilege in no-fly list case
Freedom of Contract – Justice Ginsburg invokes specter of Lochner – and cites Bork! – in dissent from Supreme Court’s ruling employees are bound by arbitration clauses they freely signed.
New big-data tool helps originalists ferret out original public meanings of words used in the Constitution
Missouri legislature calls for Convention of the States to take up congressional term limits; measure expires if no convention called in 5 years
19A: “Preparations Under Way To Celebrate The Centennial Of Women's Suffrage”
New book on state constitutions reminds us that the U.S. Supreme Court doesn’t have all the answers
Shame! New Jersey principal apologizes for ‘1776’ prom theme
Tonight, I take up another constitutional question related to the Mueller investigation – whether or not the special counsel law is constitutional. But, first, an update:
Last time, I told you how a sitting President can’t be indicted, if one follows the long-standing practice outlined in two Justice Department memos. This week, according to Rudy Giuliani, Mueller’s team admitted to him they have no authority to indict a sitting President. As a result, many have speculated that what Mueller is really up to is laying the groundwork for impeachment after the November elections.
On to tonight’s question: The Supreme Court upheld the constitutionality of the post-Watergate independent counsel statute under the Appointments Clause in a 1988 case, Morrison v. Olson. Article II, Section 2 of the U.S. Constitution authorizes the President to nominate what are now called “principal” officers with the advice and consent of the Senate. “Inferior” officers, on the other hand, are to be appointed by the President, the courts, or heads of federal departments. Congress can specify which in the enabling statute.
As odd as it may sound, there is no clear line between “principal” and “inferior” officers. The framers did not leave a detailed set of instructions to determine which is which. The Supreme Court held in the 1988 case that the independent counsel at issue was a lawfully appointed “inferior” officer based on four factors:
First, the independent counsel was subject to removal by a higher Executive Branch official. Second, the statute only empowered the independent counsel to perform certain limited duties. Third, the independent counsel’s reach only extended to certain federal officials suspected of certain serious crimes. And fourth, the independent counsel’s authority was temporary and to be terminated when the job was done.
This could be said to describe Special Counsel Robert Mueller, but it has been argued that his appointment is unconstitutional when you look at the same four factors examined in the 1988 case: Mueller is going after a large number of people for numerous types of crimes – including many unrelated to Trump-Russia collusion. This makes him analogous and in some ways more powerful than U.S. Attorneys, who are “principal” officers appointed with the advice and consent of the Senate. While Mueller does have a boss, it is further argued that Rod Rosenstein cannot lawfully delegate his authority to Mueller to bring all kinds of indictments any more than President Trump could delegate his veto power to Rosenstein.
The argument is intriguing, but I doubt that any court would so hold. It would have to be brought up in the posture of a case where an indictment was issued and I just can’t see a judge tossing an indictment on the grounds that Mueller was not constitutionally appointed. There’s too much water under the bridge. But I could be wrong and the issue could end up in the Supreme Court. For now, I’m going with the odds that special counsel laws are generally upheld as constitutional.
Don Powers is an award-winning presenter on the Constitution who has re-worked his course information for college students into classes on the Constitution for the public. He found that his college students didn’t understand the Constitution before taking his course, and neither do most adults. “We’re losing our freedom,” Powers says, “because too many people can’t see that the Constitution protects our freedom. Unfortunately for America, our elected politicians, un-elected judges, and bureaucrats are moving us back to the rule of man.”
Powers received the George Washington Medal from Freedom’s Foundation at Valley Forge for his class “Understanding the Constitution.” He is the President of the Oklahoma City chapter of the Foundation. Powers most recently taught his class this spring under the umbrella of Oklahoma State University’s Osher Lifelong Learning Institute. During the last 10 years, he has taught the class to approximately 3,000 people from book clubs, veterans groups, churches, and patriotic organizations.
His classes draw from The 5000 Year Leap by W. Cleon Skousen which Powers calls one of the best books on the Constitution ever written. Its 28 principles of freedom begin with natural law, the only reliable footing for sound government. The Founders of this nation were familiar with these principles and used them to structure the Constitution. “If you don’t understand where the Founders were coming from, it’s hard to understand the document and how it was written,” Powers says. He also teaches key elements of the Declaration of Independence and seminal historical events from the Revolutionary Era.
“The Constitution is not hard to understand once properly taught,” Powers says. “It was written for the average person living in the colonies at the time. Any reasonably intelligent person today can understand it with a little background.”
Despite its simplicity, “the Constitution is not being used properly today,” he says, “especially not by Congress, which grants too much discretion to the federal agencies and takes too much power away from the states and the people.” This adversely affects the Rule of Law and constitutes a regression to the rule of man, Powers rightly says.
Continuing, Powers says, “When people try to identify anything they can do today, without government involvement, they usually conclude that government touches every conceivable thing they might do. We have allowed the government to escape the bounds of the Constitution.”
“The Constitution means what it says (The Stated Powers, the restrictions on the Government) and it means what it doesn’t say (The Reserve Powers held by States and ‘We the People’),” Powers says. “If the Constitution does not give a power to the federal government, then the federal government is prohibited from exercising that power.”
This last point puts Powers on the side of William Howard Taft against Teddy Roosevelt, who believed that a President can do anything the Constitution doesn’t forbid. Even if unmoored from justice and natural law? The View of the Constitution by our American Founders, President Taft, Powers and other Constitutionalists is the more humane and sustainable vision – limited government, which Powers says is, “the original intent of the Founders from their writings and from analysis and research into the four-corners of the documents that constitute the United States of America’s organic law.”
Powers wrote a pamphlet on how states can take back power from Washington using the Constitution. “The Toolbox of States’ Rights – A Model Plan for States to use in Pushing Back Against Federal Government Over-reach” is available from:
Don M. Powers
c/o Powers At Law, LLC
1420 Bond Street
Edmond, OK 73034
Attorney Powers will help and consult with people interested in teaching Constitution classes in their area. He is currently developing a book on the Constitution from his newspaper columns and his own research conducted into the Founders and America’s organic law.
More patriots like Powers, please!
Federalism – Supreme Court strikes down federal law against sports betting as violation of anti-commandeering rule
Separation of Powers – dismissal of appeal in Obamacare subsidy case leaves intact executive can’t spend money Congress hasn’t appropriated
State constitution figures in state lower court striking down California’s assisted suicide law as outside the scope of a legislative special session
14A Equal Protection: Oklahoma Supreme Court upholds voter ID law; protects election integrity, not an undue burden
1A: court clears release of James O’Keefe video showing teachers union attempting to secure buyout for teacher accused of touching a student; free speech trumps commercial interests at stake
Electoral College: National Popular Vote compact closing in on success with passage in Connecticut legislature; Governor expected to sign
1A: federal appeals court prevents IBEW from requiring photo ID to end union membership and stop dues payments.
1A: famous First Amendment lawyer says Euro-style ‘right to be forgotten laws censor truthful and factual speech
1A: temporary restraining order against supposedly libelous political ad in Arkansas is probably an unconstitutional prior restraint
1A: UMichigan is sued for Orwellian speech code that governs students on and off campus, enforced by ‘secret police’, public shaming, and ‘reeducation camps’
1A: guards told inmate to lie or be confined to his cell; Second Circuit rules refusing to snitch is protected 1A conduct.
1A Free Press: bill in Missouri would counteract Supreme Court ruling, grant free press rights to student journalists
2A: ignore the disarmament whisperers, the deterrent effect of an armed citizenry on a rogue government is real
2A: Gun control advocates can no longer claim tough gun laws have stopped mass shootings in Australia
4A: Supreme Court rules rental car drivers not on the contract are protected against unreasonable search & seizure in opinion that blends property rights and expectation of privacy rationales
4A: Fourth Circuit requires some individualized suspicion for forensic searches of cell phones seized at the border, going forward.
Federalism: pending bills making it a federal crime to assault a police officer seen as contrary to precedent saying federal government does not have a general power to punish violent crime
14A Equal Protection: twisted Texas law directed at polygamists seen as enhancing punishment on all married persons for sexual assault
14A Equal Protection: bail reform movement logic applied in case involving traffic fines imposed regardless of ability to pay
Economic Freedom: Arizona enacts food truck freedom law
Amendments: “Iowa Latest State to Reject Convention of the States”
Amendment proposed to abolish Article 2 Section 1 requirement President must be a natural born citizen; little different than discrimination on race or ethnicity
Ben Franklin’s famous ‘Join or Die’ snake cartoon followed a military loss to the French
Yo, @TheOnlyEdAsner! Saying rich white men can’t write a good Constitution is like saying comedy shows with rich white men can’t be funny.
Separation of Powers: One of the dueling DACA lawsuits is assigned to Judge Hanen, original judge on 2015 DAPA challenge and DACA-skeptic.
Dueling DACA lawsuits may result in issuance of dueling national injunctions by lower courts
2A: students from 300 schools across the country walk out to support the Second Amendment
Federalism: Trump signs executive order to start pulling federal government out of K-12 education, return control to states and localities
Equal Protection: “The Transgender Bathroom Wars Continue in State Court” http://reason.com/volokh/2018/05/03/the-transgender-bathroom-wars-continue-i
1A: Do you want your state appointing fact checkers and disapproving of your online posts? Bill introduced in California
1A Freedom of Religion: which would you rather have – freedom of conscience or beheading for apostasy? Tough choice, huh?
1A Free Press: series winds up with a look at the right of all – not just professionals - to use the printing press
2A: “Trump at NRA Convention: Trusting The People with Guns Is Part of Trusting Them with Freedom”
4A, State Constitution: drug arrests at immigration checkpoint thrown out because use of drug-sniffing dogs showed primary purpose was drug interdiction w/o a warrant, not immigration enforcement
11A: Views clash on rationales for state sovereign immunity
14A Equal Protection: Colorado Republicans winning reforms to secretive civil rights commission that ensnared Masterpiece cake baker
Administrative Procedure Act does not authorize national injunctions, as some believe
Religious freedom facing cultural headwinds – fewer church-goers, more identity politics and anti-religious animus
Prof. Randy Barnett’s book recommendations from the Founding Period to today, with a stop-over in Progressive eugenics theory
Hagiographic documentary of Ruth Bader Ginsburg extols her love of the U.S. Constitution over the South African constitution. Then I put my hearing aids in.
Don’t forget to laugh: “Korean war must continue: Hawaiian federal judge declares Trump's peace effort unconstitutional” (satire)
There were questions all week about the constitutionality of the Mueller investigation. Tonight, I take up one of those questions: can a sitting President be indicted while in office?
The short answer is ‘no’, according to the Justice Department’s Office of Legal Counsel which has looked into the matter twice, once during the Nixon crisis and again during Bill Clinton’s presidency.
Here’s their bottom line from the year 2000:
Remember, though, that this is just an opinion and a court could decide differently. Remember, also, that the appropriate remedy for a President-gone-bad is impeachment, not criminal prosecution while in office. Prosecution AFTER the President leaves office is another matter entirely. The interference rationale would no longer apply, and the plain language of the Constitution permits prosecution afterward. The Impeachment Clauses [Article 1, Section 3, Clauses 6 and 7] expressly state that a President is subject to indictment, trial, and punishment after an impeachment conviction in the Senate sets up removal from office.
You won’t find a ‘separation of powers’ clause in the Constitution, but the entire structure of the Constitution embodies the concept. The legislative, executive, and judicial branches and powers are set forth separately in the first three Articles of the Constitution. The Framers were influenced by the ideas of Montesquieu who warned that the failure to separate governmental powers would lead to the loss of liberty by virtue of the same government officials enforcing tyrannical laws that they themselves had just enacted. Failure to separate powers could further lead to violence and the “end of every thing,” Montesquieu warned.
The Justice Department’s analysis focused on constitutional duties the President alone is called upon to perform, duties such as being the commander-in-chief, negotiating treaties, and vetoing legislation passed by Congress. [2000 memo at 229,246-247]. The exercise of these duties would be substantially impaired by imprisonment, by the stigma of criminal process hanging over a President’s head, and by the mental strain and other burdens of having to prepare a criminal defense while in office. [2000 memo at 246]. The Justice Department distinguished sitting for a deposition in a civil matter, as happened in the Clinton-era Paula Jones case, from the much higher burdens that criminal process would impose. Moreover, burdening a President with criminal process while in office would destabilize the entire executive branch [2000 memo at 230] and give 12 people on a criminal jury the power to upset an entire national election [2000 memo at 231]. Also, the growth of government over time makes it more important not to interfere, the 2000 memo said several times [e.g., p. 247].
The Justice Department was careful to say that no President is above the law and that all Presidents are ultimately accountable [2000 memo at 236]. It also said it based its opinions, not directly on the text or history of the Constitution, but on more general considerations of constitutional structure – i.e., separation of powers. [id.]
It all adds up to temporary immunity from criminal prosecution for a sitting President while in office - at least as things stand at the moment. Will Robert Mueller and what’s been called ‘his merry band of Democratic donors’ have the chutzpah to try to upset the existing constitutional order and indict the President? We are getting closer to an answer with talk of subpoenas now in the air.
Executive Overreach – 7 states sue to end DACA program, setting up showdown in Supreme Court with existing case filed to continue program
2A: Students in 40 states to Stand for the Second, walk out of class on May 2nd
14A Equal Protection: federal appeals court upholds revised voter ID law in Texas
Patents: Supreme Court rules patent agency can revoke patents; status as Article III court not required – but keep an eye on Gorsuch campaign to rein in power of administrative state.
Copyright: federal appeals court rules monkey lacks standing to sue for selfie copyright infringement
1A: a right to protest anonymously? Courts divided on state anti-mask laws http://www.chicagotribune.com/news/opinion/commentary/ct-perspec-carter-georgia-masks-anonymity-protests-0430-20180427-story.html
1A: observers say California bill would impinge on speech rights of authors, speakers, and others holding traditional marriage views
1A: survey shows most Americans oppose hate speech laws, political correctness.
1A: federal judge greenlights lawsuits by conservatives against UC Berkeley for discrimination against Milo, other planned speakers
1A: Tweeting that a disabled HS classmate should kill himself is not protected speech, Minnesota Court of Appeals rules
1A: series on free press continues with focus on the right extending beyond the industry/profession
1A Religion: federal judge finds Falun Gong is a ‘religious institution’ giving it higher protection in lawsuit against anti-cult group’s assaults allegedly sponsored by China
2A: federal appeals court rules medical marijuana cardholders can’t buy guns; drug use associated with irrational and unpredictable behavior
2A: federal district court – “Man with 28-year-old Felony False Statement Conviction Can't Be Denied Second Amendment Rights”
2A: short video explains what an AR-15 is and is not
5A Self-Incrimination: federal judge decides suspect can be compelled to decrypt devices; turning over incriminating evidence is generally not self-incrimination
Due Process under NJ constitution: lifetime sex offender registry requirements cannot be applied to juveniles
Equal Protection: “Judge rules New York City bar can refuse service to Trump supporter wearing MAGA hat”; political beliefs not protected under state and local discrimination laws (can this be correct under public accommodation concepts?)
14A Equal Protection: constitutional basis for denying felons the right to vote is in the plain language of section 2 of 14A
14A Equal Protection: case discusses state officials’ “unfettered discretion” and lack of standards in felon voting rights restoration scheme (discrimination on race alleged)
Amendment: proposed Equal Rights Amendment front and center again, but do women really want to give up preferential treatment (e.g., affirmative action)?
Federalism v. Subsidiarity: states and cities often in tension; what is ‘local control’?
“In 1976, protesters tried to burn an American flag at Dodger Stadium. Outfielder Rick Monday wasn't having any of that.”
New Hampshire street renamed Ratification Way, in honor of state’s signature that made ratification of the U.S. Constitution official.
Constitution education group in Florida sponsors debates, awards scholarships to high schoolers
President Trump’s Law Day proclamation celebrates nation’s heritage of liberty, justice, and equality under the law, and stresses importance of the Rule of Law
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