5A Due Process: 20 states sue Trump administration over indefinite detention of migrant families
1A: videographers cannot be compelled to serve same-sex weddings, 8th Circuit rules
5A Due Process / Equal Protection: Kentucky county clerk Kim Davis held personally liable for refusing to issue same-sex marriage licenses after Obergefell case. Hero? Or villain who should have complied or resigned?
1A: Trump files en banc appeal of 2nd Circuit panel order prohibiting him from blocking followers on Twitter
1A Free Press: federal judge dismisses more counts against baby parts videographer David Daleiden for lack of evidence, but the rest will go to trial
Free Expression: D.C. Circuit refuses to summarily dismiss Laura Loomer appeal in case against Google for censorship; an appellate panel will hear the merits
Discrimination: multitudinous friend-of-the-court briefs filed with Supreme Court oppose puffing up ‘sex’ in federal law to include ‘gender identity’. (Congress should decide this but they’re cowards, hoping the Court will relieve them of the responsibility).
8A: 9th Circuit strikes again - denying transgender surgery is cruel and unusual punishment; state to appeal
14A Equal Protection: federal judge rules transgenders entitled to Medicaid coverage for gender reassignment procedures, because everybody knows this is just good healthcare. Sure.
5A Due Process: Trump administration asks Supreme Court to lift order blocking third safe country rule
1A: federal judge in Kansas knocks down federal law prohibiting people from “encouraging” or “inducing” illegal immigration
14A,8A: Supreme Court to hear case of Kansas man denied insanity defense under state statute
6A: thousands of convictions in Oregon could be invalidated if Supreme Court rules nonunanimous juries unconstitutional next term
1A Religion: Bibles, Qurans, Talmuds, and religious displays now permissible under revised rules at the VA
Discrimination: Justice Department sues Baltimore County police for discriminating against black applicants; skills tested on written exam not job-related
Separation of Powers: second court invalidates Obama-era EPA ‘waters of the U.S.’ rule for agency overreach
1A Religion: South Carolina town lifts ban on renting civic center for worship services in court agreement
2A: case of mistaken identity strips Florida man of Second Amendment rights under state ‘red flag’ laws
4A: split deepens over whether and to what extent police can search a computer a private party brought to them but owned by someone else; issue appears headed to Supreme Court
4A: man arrested with 30 pounds of cocaine, but police need reasonable suspicion phone contains ‘digital contraband’ before they can download and search it without a warrant
5A Eminent Domain: property owners win a few rounds in ongoing litigation arising from deliberate flooding by Houston to manage Hurricane Harvey
Electoral College: What if the Electoral College really did choose the President, as the Founders intended?
Kudos! to the academic suing her college for aiding and abetting the shouting down of her remarks in favor of the Pledge of allegiance at a board of trustees meeting
The Constitution is not only one of America’s founding documents, it can be a really good engagement tool for your festival booths.
My Tea Party created a Constitution quiz and it was a big hit at the Irish festival in our area yesterday. We had as many as eight people taking the quiz at one time. A big sign - How Well Do You Know Your Constitution? - and a scoreboard underneath drew people to our booth.
The questions, ten in all, started off easy - What is the age requirement for U.S. President? What amendment protects the right to keep and bear arms? The questions got harder from there: True or False - Laws enacted by the States are the supreme law of the land. True or False - Members of Congress can give themselves a pay raise before the next election.
A couple of the questions were disputed by Constitution geeks. For example: Does the General Welfare clause authorize social spending? We asked the question because actions justified by the General Welfare clause are supposed to benefit all the people, not just a subset like people who receive government checks, yet the General Welfare clause is being cited more and more often now to justify all kinds of things, including more social spending. Two people objected to the question, arguing that writing government checks to welfare recipients ultimately benefits all the people. So we will drop out problematic questions in future events because the point of the exercise is to educate the public about the Tea Party and our core values, not spend 20 minutes debating fine points with Constitution geeks. After scoring each individual who took the quiz and placing a colored dot on the scoreboard to mark their results, we quickly pivoted to asking what they think the Tea Party stands for. Many had never talked to a Tea Partier before. We gave each individual a card expressing our core values and giving our website address.
It was very gratifying to see so many people who know next to nothing about the Tea Party display such an interest in the Constitution. It is often said the Constitution is one of the few things left that all Americans have in common. The tremendous interest the quiz generated at our booth yesterday certainly shows lots of ordinary Americans are still very attached to our Constitution - and this was in a Deep Blue area! There’s hope for this country, yet.
5A Due Process: Trump administration moves to scrap the Flores Agreement and detain migrant families longer than 20 days
Nationwide Injunctions: 9th Circuit denies nationwide injunction blocking Trump administration ‘safe third country’ asylum rule; injunction in effect along the Texas border.
5A Due Process: Class-action lawsuit filed against Trump administration over poor medical care in immigration facilities
5A Due Process: Three states sue Trump administration to block new rules denying permanent residence to legal immigrants who have been on welfare.
14A Due Process: federal judge tosses illegal alien’s class-action lawsuit against Virginia sheriff cooperating in 287(g) ICE detainers
Separation of Powers: Trump administration submits brief in DACA case, arguing it has the legal authority to terminate by executive order what Obama created by executive order
9th Circuit declines to block Trump administration defunding of Planned Parenthood while litigation continues
1A: baby parts videographer David Daleiden facing tough sledding - $195K fine stands and felony prosecution resumes in September
5A Regulatory Taking: San Fran landlord sues in federal court to overturn ‘lifetime lease’ ordinance (Supreme Court recently opened the door to federal court in eminent domain cases, so more are expected)
1A Speech/Religion: real estate agent sues state regulator for seeking to prevent her from using ‘Jesus Loves You’ and other religious speech in her emails and business
14A Equal Protection: Virginia school board to appeal federal judge’s transgender bathroom order
14A Equal Protection: Domino’s petitioning Supreme Court to hear case testing whether company can be required to make its website accessible to the disabled (e.g., install code enabling screen readers for the blind)
1A: theory of Prager U social media bias case - social media can decide to be publishers or public forums, but not both (they want to curate but avoid liability for content)
1A: you can still criticize your government (restraining orders fail in court in 2 cases)
4A: anal cavity search under sedation for drug baggie held unreasonable search (too intrusive and a risk to the accused’s health)
8A: confining prisoner in cold constantly lit room with no bedding or toilet paper with only ‘paper-like garments’ to wear is cruel and unusual punishment
5A: 5th Circuit upholds Indian Child Welfare Act over discrimination claims
Article 1, Section 9: defendant gets evidentiary hearing in habeas corpus case where witness recanted multiple times (saying police threatened to take her kids away) and a new witness said she saw the actual killer
Electoral College: states have no power to require electors to cast their vote for the winner of the popular vote in the state
Discrimination: college tennis coach, fired after school declined to interview witnesses following false accusation of sexual harassment, makes out prima facie case of sex discrimination (2nd Circuit)
Shame! on the American Bar Association for effectively proposing to do away with the presumption of innocence in sexual assault cases; ‘affirmative consent’ standard would lead to absurd results
Shame! on the New York Times for its ‘1619’ junk history project claiming slavery explains absolutely everything about America
Kudos! to the Florida high school teacher who was expelled from the classroom for defending the Pledge of Allegiance
Call to Action from Individuals United for Freedom:
If you disagree, please call
Duval County Schools communications: 904-390-2126
First Coast High School: 904-757-0080
Suppose it’s the year 2011 and Texas passes a law no presidential candidate can appear on the ballot unless the candidate releases their college records to the public. You might recall that President Obama refused to release his records from Columbia University. What do you think would have happened if Texas had passed such a law? The Obama campaign would have screamed the law was unconstitutional, Republicans in Texas would have countered that the law promoted transparency, and the Supreme Court would have ruled in Obama’s favor, if my analysis is correct.
California recently enacted a law requiring presidential and gubernatorial candidates to release five years of tax returns before being allowed to appear on a primary ballot. President Trump and the RNC sued California earlier this month to block the law.
It seems pretty cut and dried to me - Article II, Section 1 of the U.S. Constitution lays out the qualifications for President. It talks about the President having to be a natural born citizen and at least 35 years old. California - or any other state, for that matter - cannot add extra qualifications like releasing tax returns before someone can be President. That is, indeed, one of the arguments made in the lawsuits. The Supreme Court ruled in 1995 that states could not add term limits to the qualifications for members of Congress. Moreover, the Supreme Court has not looked with favor on states trying to add restrictions in a nation-wide electoral process.
The lawsuits go on to argue that the California law violates the First Amendment for targeting President Trump for his political views, violates the 14th Amendment, and is preempted by the federal statute requiring candidates to file financial disclosure forms.
So are the law professors and others who support California’s law completely crazy? Well, maybe not completely. They argue, first, that states can impose some requirements, like a signature-gathering process for independent candidates in federal elections. But when Ohio tried to impose an early filing deadline on independent candidate John Anderson in 1980, it got shot down. Next, it is argued that California’s law merely gives voters information they care about and applies equally to all candidates. Third, some say California’s law only affects party primaries, not the national election. But the Supreme Court extended constitutional protections to primaries in 1941 [United States v. Classic]. Finally - and this is really exotic - it’s been argued that Presidents are not elected by popular vote and states have wide discretion to set requirements for who may serve as electors in the Electoral College. Therefore, it is argued, there is nothing wrong with requiring that electors only pledge support to candidates who have released their tax returns.
All of this is too clever by half. It’s dangerous to make predictions, especially about the future, but I’ll go out on a limb and predict the judicial branch will ultimately find California’s law adds extra qualifications to the office of President and is, therefore, unconstitutional. The stakes are high because same law has been proposed in at least 25 states. If California’s law is upheld, Trump could be off the 2020 ballot in half the country. Stay tuned on this one.
I was appalled when I saw a picture of a biological boy maintaining a stranglehold over a girl contestant in a school wrestling match. This is the insanity that results from letting boys who self-identify as girls take over girls’ sports
I’m not the only one who is struck by the basic unfairness of the situation. In June, three female high school athletes in Connecticut filed a complaint with the U.S. Department of Education for Civil Rights alleging that the Connecticut Interscholastic Athletic Conference unlawfully discriminated against girls when it allowed transgenders to compete in girls’ sports. The girls argue that the school policy violates Title IX, a federal law passed in 1972 to protect equal athletic opportunities for women and girls. The Obama administration opened the door to allowing boys in girls’ sports when it usurped legislative power and administratively puffed up the definition of ‘sex’ in Title IX to include ‘gender’, thus protecting transgenders against discrimination. So, does protection for transgenders trump protection for female athletes for whom Title IX was written? We’re going to find out. This last week, the Department of Education granted the request to investigate the girls’ allegations of illegal discrimination against them. The case will go forward.
Title IX states that, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving Federal financial assistance.” Title IX is an example of how the 14th Amendment’s Equal Protection clause has been interpreted and applied over time.
The complaint describes how one boy, who didn’t do so well in male track events, all of a sudden started competing in girls’ events. That student now holds 10 records that used to belong to 10 different girls. The girls complain, and rightly so, that the inclusion of boys in their events has deprived the girls, not only of recognition and publicity, but of college recruiting and scholarship opportunities. This is yet another example of how liberal policies are not just wrong, they hurt people. It’s also an example of the pretzel logic of the Left where you can complain all day about the evil patriarchy, then turn around and make sure the patriarchy squelches any real chance girl athletes have for advancement. Can it get any crazier than this?
Connecticut Girls Sue Over Letting Biological Boys Compete in Girls Sports (Constitution news round-up)
14A: Connecticut girl athletes file federal complaint over school rule allowing transgenders into athletic events; biological boys rewriting the record books and denying college scholarships to the girls
Free Expression - draft executive order would direct FCC, FTC to scrutinize tech company censorship of the Right; critics say it smacks of speech police
Separation of Powers: Dems call Trump’s foreign aid freeze unconstitutional blockage of Congressional appropriations
Kirsten Gillibrand files brief telling Supreme Court conservatism is sick and threatens court-packing legislation to ‘heal’ the Court. #NiceSmileTeethOfIron
17A: federal court to decide whether appointed Sen. McSally can serve 27 months without special election
1A: federal appeals court greenlights Baton Rouge cop’s lawsuit against BLM organizer for his part in injuries cop suffered during protest; conduct is not speech
1A: federal workers union suit alleges interpretation of Hatch Act keeping them from advocating impeachment or using #resist online violates free speech
1A: “Texas Appellate Court Strikes Down Electronic Harassment Statute” - ban on online speech unconstitutionally vague and overbroad.
2A: The Problem with 'Red Flag' Laws (new article)
5A Eminent Domain - D.C. Circuit reaffirms “Kafkaesque” practice of letting private companies use eminent domain and issue ‘petitions for rehearing’ without triggering federal appeal rights
10A: federal judge rules Trump administration can’t withhold law enforcement grants from sanctuary Portland (but last month 9th Circuit found a ‘bonus point’ system kosher)
14A: article suggests reparations fail Supreme Court test for allowing ‘reverse discrimination’ against whites; no ‘compelling governmental interest’ that would survive ‘strict scrutiny’
14A: married male couple wins battle in Utah Supreme Court against state law requiring at least one surrogate parent to be female.
14A: federal judge buys artificial ‘gender identity’ construct baloney, hands transgender student a win in a bathroom case; another transgender case is pending before the Supreme Court. #AntiScience
14A: federal judge in Alaska rule Christian women’s shelter cannot be forced to admit transgender
Article I, Section 10: North Dakota law retroactively changing terms of contracts between manufacturers and dealers of farm equipment violates the contract clause (Eighth Circuit)
Article suggests replacing Chevron deference with giving additional but not conclusive weight to agency determinations
Kudos! to U.S. Olympic Committee for preparing to punish U.S. athlete who took a knee at Pan Am Games in violation of commitment to refrain from political demonstrations
Presidential Qualifications: Trump sues California over law requiring the release of tax returns to appear on the ballot.
2A: After Dayton and El Paso, Sen. Graham reaches bipartisan deal encouraging ‘red flag’ laws allowing states to take guns from potentially dangerous individuals
5A Due Process: ACLU sues to stop speedy deportation under Trump administration’s expansion of established ‘expedited removal’ process
Interstate Commerce, 1A: federal judge greenlights lawsuit over California law requiring pharma to provide advance notice of and state reasons for drug price hikes
1A Religion: Satanists argue Missouri law requiring abortionists to provide women with information, ultrasound, and alternatives pushes religious beliefs on people
1A: video lays out rules for when the government can restrict spending money on speech
1A: ‘hate speech’ is protected by the First Amendment - “censoring hate speech actually does more harm than good”
1A: Facebook page satirizing local police department (minorities need not apply, pedophiles to receive police honors, etc.) is constitutionally protected. Ridiculing the government is quintessentially American (6th Circuit)
Free Expression: bill introduced in the House to stop social media censorship
Free Expression: Congress granted immunity to Internet publishers, but interesting dissent argues using algorithms to match Hamas terrorist messages with people receptive to them makes Facebook more than a ‘publisher’.
2A: NYC loosens restrictions on where locked and unloaded handguns can be carried to stave off Supreme Court review
2A: Remington asks Supreme Court to review case by Sandy Hook victims pinning liability on gun manufacturer for what people did with the product. #PandorasBox
2A: Florida AG tries to block ‘assault weapons’ ban from ballot because it does not accurately disclose types of weapons reached, or the fact owners would have to register or face felony charges
4A: warrantless inspection of rancher’s truck OK because ‘commercial trucking’ is a highly regulated industry (8th Circuit). Hmmm....
5A Fundamental Rights: federal judge dismisses activist climate change suit after finding there is no fundamental ‘right to wilderness’ (this is NOT the Climate Kids case)
Movement to give rivers and nature ‘environmental personhood’ and rights in court growing internationally
Economic Freedom: 8th Circuit greenlights lawsuit challenging Minnesota law requiring wineries to use 51% Minnesota-grown grapes if they offer wine tastings or sell direct to consumers
Electoral College: Colorado group turns in signatures to get on the ballot to challenge state’s joining the National Popular Vote Compact
Appointments Clause: Study finds some 2,500 FDA regulations unconstitutional because they were promulgated by low-level officials lacking Senate confirmation (subdelegation issue)
Kudos! To the 2-year-old who can recite the Pledge of Allegiance
The Left is eating up an award winning Broadway play - “What the Constitution Means to Me” - that is about to tour the country. The playwright, Heidi Schreck, has discovered, like the producers of the play Angels in America and many other artists before her, that the ticket to success in the arts world is to tilt to the Left and serve up exactly what Progressives want to hear.
As a teenager, Heidi Schreck loved the Constitution and paid for her entire college education by going around the country giving speeches on it. Her play “What the Constitution Means to Me” features her as an adult revisiting her teenage love of the Constitution and finding fault in the document now that she’s older. Her current views are quite far to the Left. She believes that transgenders have a basic human right to serve in the military, when the fact of the matter is NO ONE has a right to serve in the military. It’s a privilege reserved for those who qualify. She’s in favor of the Climate Kids lawsuit which seeks to establish a Constitutional right to a pristine environment, even though it would mean that the entire U.S. economy would be run by one federal judge out of a courtroom in Oregon, which is what the Climate Kids are asking for. She believes that our democracy is a lie and the United States is sliding into tyranny under President Trump, even though he has not shut down any newspapers or thrown any editors in jail. Schreck suffers from full-blown Trump Derangement Syndrome.
The adult Heidi Schreck has developed two problems with the Constitution, both straight out of the Left’s playbook - first, that the Constitution fails to achieve diversity and inclusiveness and, second, that it fails to protect people against the slings and arrows of outrageous fortune. With regard to diversity, Schreck says the Constitution only protects “the people who are already protected” - whatever that means - and is working perfectly as intended - to protect rich, white men. Everyone else is pushed to the margins of the Constitution, she says. We all belong in the Preamble, she declares. Never mind that the Preamble starts with “We the People”, not “We the Rich, White Men”. It’s an “appalling” document, she says, because it views blacks as property, not human beings. Never mind that the Constitution set things up to eventually get rid of slavery. [E.g., Slave Trade Clause - Article I Section 9].
The original Constitution may not look so good when viewed through the narrow prism of today’s identity politics, but this ignores the 13th, 14th, 15th, and 19th Amendments - getting rid of slavery, ushering in Equal Protection, and guaranteeing the right to vote regardless of race or biological sex. Why would you throw out a document that has shown it can bring the blessings of liberty to more and more people over time, as our Constitution has? The worn-out observation that the original Constitution included some people but excluded others is true, but misleading.
Moreover, judging the Constitution by the standards of the Left’s diversity narrative du jour ignores all the things that are wrong with the narrative itself. Here are just three: First, it’s way out of balance. It crowds out other important values that the Constitution does embody like limited government, popular sovereignty, personal freedom, and individual rights. Get people all hepped up on diversity theory to the exclusion of all other considerations and, before you know it, they’re in Kentucky teens’ faces at the Lincoln Memorial [Nicholas Sandmann] and committing hate crime hoaxes in Chicago [Jussie Smollett]. Second, diversity policies hurt people. Just ask the excellent Asian students who can’t get into Harvard because of affirmative action policies favoring other groups. Third, the diversity narrative is leading to absurd results, like the resegregation of college dorms and the self-identify phenomenon where you can wake up one morning and proclaim you are something you are not and everyone else just has to bow down to it. Schreck and her play say nothing about any of these complications.
But there’s a second, more fundamental flaw in Schreck’s thinking. She criticizes the Constitution for failing to protect people, like her grandmother who was the victim of an abusive childhood. “I believe we need a brand-new positive rights document...,” she says during the play. The Constitution contains mostly negative rights that keep the government from doing bad things to you, like shutting you up or searching your house without a warrant. Positive rights include various forms of economic security, such as the rights to housing, education, and a job in FDR’s Second Bill of Rights. But positive rights also include the right to police protection, thus her beef with Justice Scalia’s opinion in a 2005 case [Castle Rock v. Gonzalez] declining to find a due process right to police enforcement of a restraining order against a father who ended up taking and murdering his three children. With positive rights, the three children and Schreck’s grandmother would have been protected, Schreck evidently believes. Forget that that police don’t always get there in time and all the other real-world complications to her rose-colored view.
The impulse behind all these positive rights is to have the government put a soft pillow under absolutely everybody for absolutely everything. Security in all things. As Schreck puts it, "Maybe instead, we could start thinking of the Constitution as a kind of ur-mother, whose job it is to actively look out for all of us, especially the most vulnerable among us." That’s the pioneer spirit.
There’s a lot of pseudo-science coming from the Left purporting to show that people on the Right are a bunch of fraidy cats and their brains are wired differently to seek security in all things. [Language of Terror by Kendall, et al.] Never mind that Social Security was a left-wing invention. But here we see the impulse for absolute security on full display from the new darling of the Left, which gets to the heart of the matter. As told to me by a former Leftist, the Left honestly believes it can bring about heaven on earth and the end of all human suffering. They believe they alone possess the secret knowledge to fundamentally transform human nature and bring about this earthly paradise. The rest of us are too stupid to figure it out. Well, I’m sorry, but that’s a bunch of malarkey. It’s a pipedream, it’s not ever gonna happen. Which makes Heidi Schreck’s play a nice bedtime story but nothing of substance that goes beyond the realm of fantasy.
So there you have it: a complete mirage from a mixed-up playwright. One minute she’s calling the Constitution “magical” and a work of “genius”, and saying it’s “appalling” the next. One minute she’s expressing her fundamental faith in the Constitution because it gives us what we need to make the country better, then calls for “a brand-new positive rights document” the next. Just because she’s conflicted and mixed up about the magnificence of our country’s founding document doesn’t mean we have to be.
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