1A: Public school Miami U in Ohio task force wants professors fired, students dismissed for not worshipping at the altar of diversity, free speech be damned
1A: federal judge rules woman likely to prevail on First Amendment claim after being banned from school property for referring to public official’s Muslim faith at school board meeting (E.D. Wis.)
1A: CAIR claims Florida Governor DeSantis’ Combating Violence, Disorder and Looting Act violates free speech and assembly
8A: NPR series explores whether the death penalty by lethal injection is cruel and unusual punishment - a drowning sensation is commonly reported, but does the defendant feel pain?
Discrimination: Black applicants for tech positions because of prior criminal convictions lose disparate impact claim; no evidence they are representative of the applicant pool in question (2nd Circuit)
Resource - short explanations of the basic constitutional principles of separation of powers, federalism, and individual rights
Amy Coney Barrett and the Constitution
President Trump’s pick to fill the vacancy on the Supreme Court, Judge Amy Coney Barrett, has been praised for her fidelity to the Constitution and respect for the rule of law.
She has criticized strict adherence to the legal doctrine of stare decisis and indicated she would rather follow the Constitution instead of Court-made doctrine. She does not view prior Court precedents as always binding. She has argued the doctrine should only be a “weak presumption” and judges should have more flexibility in constitutional cases. She has endorsed the view that “a justice’s duty is to the Constitution” and it is legitimate for judges to decide according to their best understanding of the Constitution rather than blindly follow precedent. She rejects the notion that any court “can declare a permanent victor in a divisive constitutional struggle.” This has the Left going nuts because it suggests she might vote to overturn Roe v. Wade if confirmed.
She favors textualism which holds that courts cannot go against the plain language of a statute to effectuate legislative intent or fix a poorly written law. She wrote in 2017, “it is illegitimate for the Court to distort either the Constitution or a statute to achieve what it deems a preferable result.” This has the Left going nuts because she has specifically called out Chief Justice John Roberts for reaching out and saving the Obamacare statute with his cockamamie ‘it isn’t a tax, it is a tax’ gyrations.
You won’t hear her talking about a ‘living, breathing Constitution’ any time soon. She appears to be an originalist, of the variety that gives the words in the Constitution their original public meaning. Also, she has argued judges have a limited role to play in our system of government and should stay in their lane. In 2016, she wrote that, “People should not look to the Supreme Court as a super Legislature. They should look at the Court as an institution that interprets our laws and protects the rule of law, but doesn’t try to impose policy preferences – that’s the job of Congress and the president.”
Her critics fear she will follow the dictates of her Catholic faith instead of the law on issues like abortion. However, regarding the death penalty, she wrote: “Judges cannot—nor should they try to—align our legal system with the Church’s moral teaching whenever the two diverge.” They should, however, recuse themselves from a case if their personal convictions keep them from doing their job. “I would never impose my own personal convictions upon the law,” she testified.
As for her judicial record, she has joined opinions allowing the death penalty to go forward in a couple of cases. She dissented in a Second Amendment case where the majority upheld a lifetime ban on firearm possession by a nonviolent felon, arguing the result was unconstitutional because there was no evidence the felon was a hi-risk individual. In an abortion case, she joined a dissent which argued Supreme Court precedents do not apply in the case of sex selection abortions. The dissent she joined emphasized not taking precedents beyond the facts at hand. That opinion argued, “We ought not impute to the Justices decisions they have not made about problems they have not faced.” She wrote the opinion in a case invalidating the university suspension of a male student who was found guilty of sexual violence. The school did not afford enough Due Process to the student, starting with the fact it refused to disclose the evidence upon which it based its decision. That was enough, in Barrett’s view, to render the process fundamentally unfair.
Maybe I’ve lived too long, but Jeff Sessions said a lot of nice things about the rule of law in his confirmation process and was a disaster as Attorney General. More recently, Justice Gorsuch - praised by conservatives and appointed to the high Court by President Trump - expanded transgender rights in an opinion every bit as cockamamie as Roberts’ Obamacare opinion. Much has been written about Justice Harry Blackmun, a Nixon appointee, disappointing conservatives. I’ve mentioned before that the Supreme Court has become too powerful in ways the Founders never intended. While having Amy Coney Barrett on the Supreme Court would be far preferable than, say, a Hillary Clinton, let’s just hope that Barrett doesn’t succumb to Potomac Fever when she gets to Washington from Indiana.
Replace Justice Ginsburg Now
President Trump tweeted he would proceed to fill the vacancy left by Justice Ginsburg’s death without delay. Mitch McConnell said the nominee will receive a floor vote.
Former President Obama suggested the Senate should delay replacing Ginsburg until after the election. However, he himself nominated Merrick Garland in an election year, 2016, and argued the spot should be filled immediately.
Joe Biden has demanded Ginsburg not be replaced until after the election. But he wrote in 2016 President Obama had a “constitutional duty” and should move quickly in that election year to fill the vacancy caused by Justice Scalia’s death.
Chuck Schumer said the vacancy should not be filled until there is a new president. But he argued in 2016 that the Senate should act on Garland’s nomination, tweeting that 17 Supreme Court justices have been confirmed in presidential election years and telling the Senate to #DoYourJob.
The late Justice Ginsburg left us so-called ‘instructions’ that her most fervent wish was that she not be replaced until a new president is installed. Sorry, but there is no ‘dead Justice’ rule requiring anyone to follow her wishes. The only rule is power: the Republican Senate denied Obama a vote on Garland in 2016 because it could, and is proceeding now because it can, and nothing in the Constitution or law prevents it.
As for there only being some 40 days left before the election, Justice Stevens was confirmed in just 16 days after being nominated in 1975. Justice O’Connor’s confirmation only took 33 days and Justice Ginsburg herself was confirmed in just 42 days. They didn’t have Judiciary Committee hearings on Supreme Court nominees until 1916 , so maybe we should just skip the circus altogether and go right to a vote.
All the flip-flops and political expediency aside, here’s what decides the case for me: The Democrats and their allies have spent the last four-plus years trying to run President Trump out of office. They spied on his 2016 presidential campaign and have yet to be brought to justice. They declared they would not accept the results of the 2016 election and resolved to become ‘ungovernable’ - their word, not mine. They rioted, smashed windows, and torched limousines at his 2017 inauguration. They consumed the next two years lying to us about Trump-Russia collusion. They gave up on that, but then lied about the Ukraine phone call and brought what has to be the lamest impeachment case, ever, against a sitting President, in all of American history. They failed miserably. Now they’re back out on the streets rioting for months on end trying to burn down federal buildings and blind police officers with lasers. The rioting stopped being about George Floyd a long time ago. They’ve already threatened to burn everything down and shut down the country if the Supreme Court nomination proceeds now. Hillary Clinton and others have told Biden not to accept the results of the current election, no matter what, and the Biden campaign has lined up 600 lawyers to contest election results in every corner of the land. And who can forget or forgive what happened to Brett Kavanaugh during his confirmation hearing - all those bogus last-minute accusations and the pictures of wild-eyed ignoramuses pounding on the doors of the Supreme Court.
After all this, Donald Trump is supposed to stay his hand? Why should the Left’s refusal to accept a peaceful transition of power in the last election and their atrocious behavior ever since be rewarded with a delay now? If the shoe were on the other foot, you know darn well the Democrats would proceed. Elections have consequences. Refusing to accept election results should have consequences, too.
Trump Administration Proposes Legislation to Hold Online Platforms Accountable for Censoring Content in Bad Faith (Constitution news round-up)
Free Expression: Trump Administration Proposes Legislation to Hold Online Platforms Accountable for Censoring Content in Bad Faith
1A: pouring water on a speaker’s head is not protected speech (Texas Court of Appeals)
1A: video game developers can base characters partly on real likenesses, as long as there are other elements that transform the character (3rd Circuit)
Discrimination: Lawsuit filed after Kroger fires two employees for refusing to wear rainbow symbol against their religious beliefs (LGBT v. religious liberty is the epic struggle right now)
Discrimination: Californians not itching to bring back affirmative action
‘Freedom and not wanting to live under a dictator are outdated.’ Sure, uh huh. Generation Z, wake up!
‘A president exercising the constitutional duty to nominate Supreme Court justices is a high crime and misdemeanor worthy of impeachment.’ Do you hear yourself?
Constitution Not Subordinate to Open-Ended Pandemic Emergency Orders, Pennsylvania Judge Rules (Constitution news round-up)
Federal judge rules Pennsylvania’s shutdown orders are unconstitutional. State to ask for a stay of the ruling while it appeals.
“CDC’s Unlawful, Unconstitutional Moratorium on Evictions” - “It’s not clear whether Congress itself would have the constitutional authority to implement such a sweeping order.”
Education Department proposes rule to implement Trump order protecting campus free speech
14A, etc.: Florida law conditioning restoration of voting rights to felons on payment of all fees, fines, and restitution kosher under various Constitutional provisions (11th Circuit)
1A: Third Circuit holds ban on political public transit ads unconstitutional; no reliable way to distinguish between political and nonpolitical ads
2A: “These 10 Examples of Defensive Gun Use Underscore Second Amendment’s True Purpose”
14A: You be the jurist - would San Francisco’s public/private partnership to give away free money to pregnant black and Pacific Islander women violate the Equal Protection clause? Hints: public/private hybrids are subject to 14A, and you can’t use race as a proxy for special need
14A: in practice, race preferences far more than just a gentle thumb on the scale in college admissions; the impact is profound and getting bigger
Commerce Clause / Necessary & Proper Clause: 11th Circuit panel invalidates Maritime Drug Law Enforcement Act; analysis different for foreign commerce
Electoral College: Steve Forbes on the risks of moving to national popular vote
State Constitution: Wisconsin AG attempting to give control over water wells to state agency in violation of state constitution
Federal judge dissent: yes, we have to follow precedent but, if it’s not directly on point, we have no duty to expand it and are free to follow the Constitution
“most of the framers of the Constitution reasoned that a union permitting states to allow slavery to exist temporarily was better than no union at all”
Shame! Ohio high school suspends, forced to reinstate football players for waving flags honoring police and firefighters who lost their lives on 9/11
Kudos! to U Northern Iowa instructor Thomas Larsen for suggesting federal agencies replace banned critical race theory training with the U.S. Constitution
A Virginia landlord has filed suit against the CDC’s eviction moratorium, alleging a whole host of constitutional violations. But the nub of the case is the landlord’s assertion that the moratorium is “an affront to core constitutional limits on federal power.” Tea Partiers have long been concerned with the aggrandizement of federal power, so we have to ask ourselves whether we are still concerned now that Trump, not Obama, is in office.
The landlord starts off his complaint with the observation that he expected, when he leased the property, that the tenant would pay rent and the landlord could go to court to seek an eviction if the tenant did not. The landlord continues to pay maintenance, utilities, and other expenses on the property. The CDC’s moratorium is unprecedented, not authorized by any statute, and suspends state law in the name of controlling the pandemic.
There are six constitutional violations alleged in the complaint. First, the moratorium violates the landlord’s right to access the courts to seek lawful eviction. The right to access the courts is found in the intersection of the Privileges and Immunities Clause, Due Process, Equal Protection, and the First Amendment Petition Clause. Second, the Due Process Clause of the 5th and 14th Amendments and these other constitutional provisions, not agency declarations, are the supreme law of the land under the Article VI Supremacy Clause. Third, the CDC’s regulation cannot preempt state contract law under the 10th Amendment because the relevant statute generally does not allow CDC regulations to supersede provisions of state law. Fourth, the moratorium offends the Supreme Court’s anti-commandeering doctrine under the 10th Amendment because stopping evictions requires the participation of state courts and state officers to administer a federal program. Fifth, upholding the moratorium would mean that Congress has delegated power to an agency without giving the agency any guiding principles to limit the exercise of that power. In other words, Congress would be asking the CDC to do Congress’ job and legislate, when agencies are only supposed to regulate within boundaries Congress sets. Finally, the CDC is attempting to suspend state laws that govern the eviction process. This attempt by the executive branch to suspend laws enacted by the legislative branch, without the legislative branch having delegated that power to the executive branch, violates separation of powers, or so it is alleged.
The landlord has filed for a preliminary injunction against enforcement of the moratorium, and that’s as far as the case has gotten as of this writing.
Politically, the case looks like a neatly laid trap. Rule in favor of the CDC and you hand Trump a political victory. Rule against the CDC, you make every renter in America mad at you and hand Trump a political victory. Trump wins either way.
A moratorium might sound great for tenants, but what about landlords? What about their property rights under the U.S. Constitution? It’s tempting to say the government should forbid evictions so tenants aren’t harmed, and even go on to say government should pay landlords so they are made whole. But can government at any level really afford to subsidize landlords indefinitely? Obviously not, so the only real solution to this problem is to end the lockdowns and get people back to work as quickly as possible. Government created a situation where lots of people can’t pay their rent, setting off a whole cascade of consequences throughout the economy, starting with landlords who, as a result, can’t meet their own obligations. With the number of COVID hospitalizations dwindling, it’s time for government to get out of the way and let life get back to normal.
Kitchen Sink: CDC eviction moratorium challenged on supremacy clause, nondelegation, anti-commandeering and other grounds
4A: 9th Circuit rules NSA mass telephone record surveillance program revealed by Edward Snowden was illegal
Discrimination: second federal judge rules against Trump administration rollback of Obamacare LGBT protections
Discrimination: 4th Circuit panel discovers a right for transgenders to use the bathroom of their chosen gender identity; things are not looking good for sanity on this issue
1A: Demonstrators have a right to speak from traffic medians ((10th Circuit)
1A: Austin’s sign code against digitization of existing billboards is not a commercial speech restriction, it is content-based discrimination which fails under strict scrutiny
1A: religious institutions can fire “ministerial employees” based on sexual orientation, but cannot harass them with a hostile working environment (7th Circuit)
2A: Circuits now split on confiscation of gun magazines, setting up possible Supreme Court case
8A: keeping a death-row inmate in solitary confinement for 33 years is cruel and unusual punishment (3rd Circuit)
8A: refusal of prison authorities to give all inmates with hepatitis C an expensive new treatment regardless of the severity of their condition is not cruel and unusual punishment (11th Circuit panel)
Shame! Washington and Lee University offers Marxist course on ‘How to Overthrow the State’. Let’s start with your faculty lounge, shall we?
Dangerous National Popular Vote Movement Trying to Cancel Minorities and Small States (Constitution news round-up)
Documentary defends Electoral College from anti-republic National Popular Vote movement; NPV would run roughshod over minorities and small states
Separation of Powers: D.C. Circuit panel rules there is no statute giving Congress the power to enforce a subpoena against former White House counsel Don McGahn
Discrimination: Washington state loses bid to block Trump administration dismantling of LGBT protection rule; state can’t show how it is harmed (W.D. WA)
5A: Gitmo detainees, as aliens detained outside the sovereign territory of the U.S., do not have due process rights (D.C. Circuit)
6A: Whose right to jury trial is it? Government consent required for defendant to waive right to jury trial and have a bench trial in federal cases, but not when there are extraordinary circumstances like a pandemic
14A: enhancing penalty just because a defendant belongs to a gang violates substantive due process - “guilt is personal” (Arizona Supreme Court)
The Framers did not put a right to vote in the Constitution because they distrusted democracy and wanted to safeguard other rights from mob rule
Shame! Protesters chant ‘Death to America’. We have the ayatollahs for that. What do we need you for?
Shame! D.C. task force tries to cancel the Washington Monument and Jefferson Memorial, gets their heads handed to them after fierce backlash
There’s been a flood of COVID-related litigation since I last reported to you on this topic in May. Tonight, we look at three cases - one in New Hampshire and two about reopening schools in Florida and California.
You may recall that, nationally, the lockdowns were originally justified as ‘flattening the curve’ and keeping the hospital system from being overwhelmed. The hospitals never did get overwhelmed and the rationale for the lockdowns started shifting to waiting for a vaccine, finding a cure, and keeping everybody safe forever.
In New Hampshire, Mary Rivard filed suit contesting the extension of the Governor’s COVID restrictions that kept her business, a hair salon, unable to open profitably. The case is interesting because Rivard argued the original justification for the lockdown had disappeared and, therefore, the Governor’s order was unconstitutional. At a court hearing, Rivard’s lawyer argued further that the number of fatalities, hospitalizations, and confirmed cases in the state did not meet the threshold for the Governor to declare a state of emergency, and that the pandemic turned out not to be as severe as predicted. The state argued the Governor was following the advice of public health professionals and the virus was still around causing problems. The case was filed in May and heard in June. There has been no decision.
In California, the state Supreme Court took the unusual step of agreeing to hear two lawsuits about reopening schools without waiting for the cases to work their way through the lower courts. The state’s high court has “original jurisdiction”, in cases of “great public importance that must be promptly resolved.”
One of the cases was filed by the Orange County Board of Education. The Board is arguing that the state’s actions restricting school reopenings violate the Equal Protection Clause of the California state constitution. The crux of the argument is that schools in counties still on the state’s coronavirus watch list face more restrictions on reopening than schools in counties that are not on the list. An attorney for the schools said at a press conference, “The California Constitution has an equal protection clause that says all kids… kids with special needs, minority children, poor children, kids from single parent families; they all deserve an equal education.” The lawsuits are asking the court to give schools and parents more discretion to decide what to do. The state was supposed to respond to the lawsuits this past Friday and a decision could be handed down as early as this coming week.
In Florida, the state ordered schools to reopen brick-and-mortar classrooms by the end of August, but Florida’s largest teachers union and the NAACP sued, claiming it was not safe to do so. This past Monday, a Florida judge agreed it was not safe and issued a temporary injunction allowing local school boards to decide whether to reopen. The judge wrote that the state’s order is “unconstitutional to the extent that it arbitrarily disregards safety, denies local school boards’ decision making with respect to reopening brick-and-mortar schools, and conditions funding on an approved reopening plan with a start date in August.” The state filed a notice of appeal right after the decision. Florida’s Education Commissioner said the lawsuit is frivolous and harms parents who want their kids back in school.
All three cases I talked about tonight are still up in the air. Stay tuned.
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