California Tries to Add Tax Returns to Constitutional Presidential Qualifications (Constitution news round-up)
Presidential Qualifications: California law purports to add qualification that presidential candidates must reveal tax returns to get on the ballot
Separation of Powers: Supreme Court upholds President Trump’s use of redirected military funds to build the border wall while an appeal is pending. https://www.washingtontimes.com/news/2019/jul/30/aclu-asks-9th-circuit-court-speed-border-wall-deci/
Due Process: federal judge temporarily blocks Trump administration rules requiring illegal aliens to apply for refuge in transit countries before applying for asylum in the United States.
1A: Trump sues New York on free speech grounds for law requiring disclosure of his state tax returns to congressional committees seeking them
1A: Trump officials shielded by First Amendment, federal judge says in dismissing DNC lawsuit for supposedly conspiring with Russia to interfere in the 2016 elections
1A: conservative political consulting firm sues Ann Arbor over law requiring firm to work for left-wing groups under the guise of stopping discrimination. (Make no mistake: They always have a ‘good reason’, but the authoritarian Left is coming for your liberty and won’t be satisfied until they take ALL of it.)
1A: ‘professional speech’ cases are a growing area of First Amendment litigation; case-in-point - Tennessee’s new requirements for auctioneer licenses
1A: 6th Circuit muses whether a showing of no probable cause should really be required in order to bring retaliatory arrest claims when only speech (and not conduct) is involved.
Free Expression: Facebook agrees to help French ‘hate speech’ police, will turn over user ID
Free Expression: Authoritarian transgender activist proclaims what is acceptable and unacceptable speech for the rest of us
1A Free Press: UC-San Diego’s defunding of student newspaper for writing satire about trigger warnings and safe spaces violates freedom of the press (9th Circuit)
1A Free Press: 4th Circuit knocks down Baltimore police practice of requiring nondisclosure agreements as a condition of settling police misconduct claims
4A: posting video on Facebook posing with guns and smoking pot gives police probable cause to get a warrant to ask Facebook for identity (8th Circuit)
14A Equal Protection: racial quotas in Connecticut schools create roadblocks for minority children; high-achieving magnet schools have empty seats because there aren’t ‘enough’ whites
14A Equal Protection: lawsuit challenges State Department policy of conferring automatic citizenship to U.S. couples’ children born abroad, but not if it’s a same-sex marriage
Discrimination: EEOC to argue in Supreme Court in October it is allowed to puff up the definition of ‘sex’ as a protected class in its enabling statute to include ‘gender identity’ (lots of civil rights commissions are playing this game)
Economic Liberty: Supreme Court struck down Tennessee law prohibiting new residents from getting a liquor license for 2 years (law protected existing liquor stores from competition)
Appointments Clause: Supreme Court to consider ‘subdelegation’, i.e., whether ‘inferior officers’ in administrative agencies can issue legally binding regulations or Senate confirmation of the issuing official is required
Shame! “Parents Laugh and Urge Children to Take Turns Whacking ICE Agent Piñata at Chicago East Side Community Day”
Kudos! “Prize-Winning Student Film Shows What It Means to Be American” (we have the freedom to hold our government accountable and the duty to maintain our Republic by doing so)
Last Monday, the 9th Circuit Court of Appeals issued an interim ruling against the Trump administration’s policy of indefinite detention of certain asylum-seekers pending their deportation hearings. The court ruled that the government failed to make “a persuasive showing that it will suffer irreparable harm if it is required to provide bond hearings pending the outcome of this appeal in the same way it had done for several years.” Getting to the heart of the matter, the court went on to say that the government is not likely to succeed on the merits of its “underlying argument that the government may indefinitely detain the plaintiffs without affording bond hearings at all.” Bottom line: the affected class of asylum seekers will have the opportunity to post bail while an appeal on the merits goes forward.
There is a long history of revulsion for indefinite detention going back at least as far as the English Habeas Corpus Act of 1679 which the noted legal authority Blackstone called the “second magna charta, and stable bulwark of our liberties.” The late Justice Scalia recounted this history in a 2004 dissent, concluding, “The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive.”
Habeas corpus is found in our own Constitution - Article I, Section 9, Clause 2. We also have the 8th Amendment which states “excessive bail shall not be required.” All of this applies to noncitizens by virtue of Due Process which, under the 5th Amendment, is afforded to all “persons”, not just citizens.
Abraham Lincoln is reviled by some for suspending the writ of habeas corpus, rounding up 14,000 political prisoners, shutting down 300 newspapers, and throwing editors in jail. Lincoln also ignored the Supreme Court which ruled he did not have the authority under the circumstances to suspend habeas corpus. At least he had the excuse there was a Civil War on.
FDR placed Americans of Japanese descent in internment camps in World War II. On that occasion, the Supreme Court upheld the action in the Korematsu case, which is widely recognized as one of the worst decisions the Court has ever made.
In recent times, the U.S. has used indefinite detention in the War on Terror, notably at Guantanamo. Efforts to amend the NDAA to prohibit indefinite detention of U.S. citizens failed in Congress, but the ACLU and others object strongly to the practice. To sum it all up, we have had some instances of indefinite detention in our history, but it’s still strongly disfavored.
We’ll have to wait and see what the 9th Circuit does on the merits when the indefinite detention question is squarely before the court. The court granted the government’s request to expedite the appeal, so we should have an appellate-level ruling sooner rather than later.
Due Process: 9th Circuit rules against indefinite detention of illegal aliens seeking asylum
5A Eminent Domain - NYC landlords sue to overturn new rent control laws as regulatory taking
1A: federal judge cuts way back on Planned Parenthood’s civil lawsuit against baby parts videographer, citing the First Amendment
1A: NY assemblyman sues AOC for blocking him on Twitter (follows ruling Trump cannot block followers)
14A Equal Protection: court allows North Carolina to implement voter ID law
14A Fundamental Rights: “Federal Judge Temporarily Blocks Arkansas Abortion Restrictions”
Free Expression: Dennis Prager testimony - ‘social media censorship on ideological grounds is a bigger threat to America than any external enemy’
1A: James O’Keefe sues Ohio to go undercover to investigate political campaigns
Economic Freedom: federal judge backs dieticians monopoly, upholds Florida ban on giving dietary advice without a license
1A Commercial Speech: NYC ban on advertising in Uber vehicles upheld even though no such ban applies to taxicabs (2nd Circuit)
2A: Virginia Beach city employee circulating petition to make his workplace no longer a gun-free zone
4A: it’s OK to force female inmates to stand naked, submit to cavity searches in full view of male officers because it’s just a VISUAL inspection (7th Circuit)
4A Property-in-Property problem: can police search a backpack owned by A when lawfully searching a house or car owned by B? No clear answer.
8A Excessive Fines: homeowner fights $30,000 fine for not mowing the lawn
8A: Colorado Supreme Court rules corporations entitled to protection against excessive fines; but lets huge total fine stand because protection only applies to amount of daily fine
8A Cruel and Unusual / Due Process: 4th Circuit strikes Virginia’s civil regulation of ‘habitual drunkards’ as unconstitutionally vague
14A Property rights: new Florida law overturns court ruling woman could not grow vegetables in her front yard
14A Equal Protection: drawing Utah county districts to pack Navajo residents into one district and therefore limit them to one representative is prohibited racial gerrymandering
14A Equal Protection: landlords can decline to accept Section 8 housing vouchers even though they are disproportionately used by minorities (5th Circuit)
Shame! on Blacksburg, Virginia festival organizers for denying a booth to a gun rights groups
Shame! on Colorado State University for telling students not to use the term ‘Americans’ in order to be overly welcoming to foreigners. What foreign university does that?
Kudos! To hockey coach who told players to ‘get out now’ if they intend to disrespect the national anthem
Observers were pretty amazed earlier this month when the 9th Circuit, of all places, handed President Trump a win in a sanctuary city case. I got curious because previous cases made it clear the Trump administration could not take away funding, or place extra conditions on federal grant money, or commandeer state employees into enforcing federal immigration laws.
It turns out, according to a 9th Circuit three-judge panel, all the Trump administration had to do was change the grant process to award bonus points to cities focusing on illegal immigration and promising to cooperate with federal immigration authorities. In contrast, Los Angeles - whose case was before the 9th Circuit panel - chose “building trust and respect” as its focus area and declined to cooperate with federal immigration authorities in such matters as turning over fugitives for deportation.
The 9th Circuit panel noted that no federal funds were withdrawn from Los Angeles, nor was Los Angeles automatically barred from receiving federal policing grants because of sanctuary city and state policies. The administration did not add extra conditions to the grant; it merely prioritized money to locales that would serve the administration’s policies better, something which L.A. and California had been free to do. Thus, the administration’s bonus point system complied with all the requirements that had been built up over time in case law interpreting the Spending Clause of the U.S. Constitution [Article I, Section 8, Clause 1].
The panel went on to say that merely awarding additional points to grant applications that emphasize lawful purposes did not amount to coercion. No city or state laws were overturned in the application process. There was no coercion and no Tenth Amendment violation, the panel said. The panel concluded by saying the administration had acted within its statutory authority, that Congress had been silent on the precise question presented, and that the administration had acted reasonably - not arbitrarily or capriciously - in prioritizing recipients of federal grants closer in line with administration policies.
Los Angeles received over $3 million from the police grant program at issue the year before the case arose. The latest report I could find indicated the city is reviewing the panel’s decision. Conceivably, Los Angeles could appeal to the full 9th Circuit or to the Supreme Court. Stay tuned.
5A Eminent Domain: Gangster Baltimore gives up quixotic quest to seize Pimlico race track and Preakness horse race; negotiating with owners to stay in the city
Art. I Sec.8: federal grants can be withheld from sanctuary cities and prioritized for locales that play ball on immigration enforcement (9th Circuit - can you believe it?)
Administrative Procedure Act - 4 advocacy groups sue to stop Trump administration asylum rule requiring prior application for refuge in transit country
Executive Power: appeals court greenlights (for now) Trump executive orders cutting time government employees may devote to union activities, redirects challenge to administrative agency (D.C. Circuit)
Emoluments: 4th Circuit dismisses emoluments lawsuit involving Trump's D.C. hotel, suggests suit was harassment and should not have been brought (a “complete victory”, Trump’s attorney said)
1A: President Trump cannot block his Twitter followers, 2nd Circuit rules
8A Civil Forfeiture: new law prevents IRS from seizing bank accounts without a connection to criminal activity
1A: “Democrat Montana Governor Vetoes Campus Free Speech Bill”
Free Expression - UK activist Tommy Robinson gets 9 months in prison for telling the truth about Islam; thousands protest
2A: federal judge blocks California agency effort to ban gun shows from San Diego county fairgrounds
Shame! - Minneapolis suburb abolished Pledge of Allegiance at city council meetings but forced to relent after nationwide backlash
Kudos! - Patriots bring American flags to Colorado ICE facility after protesters take down and attempt to burn Stars-and-Stripes, hoist Reconquista Mexican flag
Unless you’ve been living in a cave the last six months, you undoubtedly have seen story after story about how the authoritarian Left is trying to silence conservatives and other non-Left voices. Whether it’s breaking down Tucker Carlson’s front door or attacking journalist Andy Ngo in Portland, Oregon, it’s clear we’ve entered a new phase. Now is the time for all good people to fight back, or watch the Left destroy our First Amendment.
In January, I gave you lots of examples of how the Left is assaulting free expression in public, on campus, and online. More recently, I’ve been tracking stories about how people are fighting back. Here are some of the more interesting ways people are taking a stand:
Our friend Senator Ted Cruz will hold hearings Tuesday July 16th on Google’s anticonservative bias. Dennis Prager, who was kicked off of YouTube - owned by Google - will testify. This follows previous hearings about anticonservative bias at Twitter and Facebook. The tech companies are probably not free speech zones, which one may reasonably conclude after the Supreme Court declined to apply the First Amendment to public access cable television earlier this year. So going after the tech giants is in the interest of free expression overall, not free speech rights under the First Amendment.
But speaking of Facebook, Laura Loomer sued Facebook for $3 billion for defamation for calling her a “dangerous individual” and a domestic terrorist. Other recent free expression-related litigation includes #WalkAway founder Brandon Straka suing a New York City gay community center for canceling his event and the state of Texas suing San Antonio for denying an airport concession to Chick-fil-A. The Chick-fil-A controversy also resulted in a new state law passed by the legislature and signed by the Governor to rectify the situation, as well as an investigation by the U.S. Department of Transportation.
Elsewhere at the state level, 28 states now have campus free speech laws or bills and Kentucky has a new law allowing Bible classes to be taught in public schools. A pending resolution in the Pennsylvania legislature condemning a state lawmaker for harassing anti-abortion protesters now has 40 co-sponsors.
On campus, an incoming freshman tore up her acceptance letter from NYU for its anti-Semitism. Her great-grandfather had founded the music department there.
Playwright and activist Phelim McAleer fought back by finding a new venue after a theater in Washington, D.C. cancelled a contract allowing him to stage his play ‘FBI Lovebirds’ about Peter Strzok and Lisa Page. The play was rescheduled in the Ronald Reagan building. It is based on Strzok and Page’s unintentionally funny texts. The show went on and a good time was had by all.
Shareholder resolutions protesting censorship or seeking ideological diversity on corporate boards were introduced at Google, Facebook, Amazon, Apple and Twitter. Shareholders also went after JPMorgan Chase for debanking conservatives.
What can you do? Here are two easy-peasy action items that will take you a grand total of five minutes. First, sign the White House petition to designate Antifa a domestic terrorist group. The petition was inspired by Antifa’s attack on Andy Ngo in Portland. Second, sign the open letter to the U.S. Army War College to reverse its decision to disinvite a speaker after CAIR - the Council on American Islamic Relations - made trouble.
Finally, there’s the story of the 10-year-old girl in Britain who was suspended from school after asking to be excused from LGBT lessons during Pride Month. She said the lessons were confusing her classmates who are now calling themselves bisexual and trans. If a 10-year-old girl can fight back against the authoritarian Left and its insanity, so can we.
My Tea Party wrote an Instant Graduate Degree in Political Science early on in the Tea Party movement and refined it over the next several years. It’s the American Idea on one page. We wrote it to celebrate the 4th of July - Independence Day - every year, and I’d like to read it to you now. Please distribute it far and wide:
Too many Americans have deliberately been cut off from their heritage and no longer understand the set of ideas the country started with, or why the Founders' ideals remain important today. Understand these ideas and you will know more about your country than many politicians or college graduates. These ideas are simple to grasp, yet more powerful than the mightiest army. America is a special place. It’s the only country in all of human history founded on an idea – individual liberty. The Declaration of Independence states that you have the unalienable rights to life, liberty, and the pursuit of happiness. These rights are not something the government gives you. As an American, you are born with these rights. Some say these rights come from nature, and call them ‘natural rights’. Others say they come from God, and call them ‘God-given rights’. The point is, YOUR RIGHTS DON’T COME FROM GOVERNMENT, or even the Constitution. What the government cannot give, it cannot take away. This is the true meaning of the American Revolution, and it was truly astounding. For the first time ever, a government was instituted to protect the rights of the people, not the privileged few or those who would set themselves up as your rulers or benefactors. THE PURPOSE OF GOVERNMENT IS TO PROTECT YOUR RIGHTS. In fact, the Founders instituted a system of limited government so that your rights could never be taken away from you. Not only do your rights NOT come from government, the truth is that government’s rights come from US. In America, we live under the revolutionary idea that WE THE PEOPLE ARE SOVEREIGN. The federal government has only the enumerated powers expressly set forth in the Constitution. It has only the powers We the People give it. Under the 9th and 10th Amendments to the Constitution, all remaining rights and powers belong to We The People and to the states, not to the bureaucrats or politicians in Washington. The Founders were very far-sighted in instituting limited government. They knew that every now and then a charismatic demagogue would come along singing a siren song about how much the government could do for you if only you would surrender your liberty. The Founders knew that somebody would always want to be King George and that the inevitable tendency of government is to grow its power and expand its reach over the people. The system of checks and balances the Founders created will, if faithfully observed, forever prevent a tyrant or tyrannical government from emerging and ruling the land by personal whim or decree. The Founders' ideas are in accord with human nature and have stood the test of time. They are superior to all political theories that went before (might makes right, let them eat cake, the divine right of kings), and to every political ideology that has come along since (various forms of collectivism which destroy individual liberty and turn the clock back to when We the People were subjects, not sovereigns). Individual liberty is the only political idea that is humane, compassionate, and sustainable in the long run. So, as you celebrate Independence Day, remember the true meaning of this occasion and why we in America truly have cause for celebration. We the People are free – we live in a free country where the people are sovereign - and, sadly, that has not been the case for most human beings who have ever walked the earth. Congratulations, you have just graduated. Now go in liberty and cherish every minute of it. Use your freedom wisely; it's a great gift. And don't let anyone denigrate the magnificence of the Founders' ideals, confuse you with sophistry, or take away your liberty without a fight. It's your heritage and your foundation as an American living in this special place we are so incredibly fortunate to call home.
Executive Power: Supreme Court to hear DACA case next year
Executive Power: Supreme Court blocks census citizenship question for now, sends case back to lower court (President theoretically has the power, but administrative law allows inquiry into proffered motivation)
Executive Power: federal judge blocks the use of military funds to build border wall
One Person One Vote: Supreme Court rules courts have no role in partisan gerrymandering cases; these are political questions best left to the political process
5A Due Process: federal judge rules indefinite detention for asylum seekers is unconstitutional; they have a protected liberty interest in freedom from unnecessary incarceration
1A Religion: Supreme to hear challenge to use of tax-credit scholarships for religious schools
6A: sex offenders have right to jury trial before receiving extra jail time for violating release conditions, Supreme Court rules
Discrimination: “ACLU Sues Over Florida Law That Requires Felons To Pay Fees, Fines Before Voting”
Shame! Nike yanks Betsy Ross shoe after Colin Kaepernick finds it offensive as reminder of slavery (what does that have to do with your rights today, Colin? NOTHING.)
Kudos! RV dealer keeps big U.S. flag flying despite $50/day fine - veterans weep at the bottom of the flagpole, dealer would rather go to jail than take it down
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