When Democrats took control of the House after the last election, the question many had was whether they would focus on passing legislation or spend the next two years talking about Trump’s tax returns. The answer has become pretty clear, with the Democrats holding, announcing, or threatening hearings or investigations on Trump/Russia collusion, Trump tax returns, Trump business dealings, Trump corruption, Trump abuse of power, Trump hush money payments, Trump obstruction of justice, Trump impeachment, Trump, Trump, and more Trump.
“The Constitution ... provided no express powers for Congress to investigate, issue subpoenas, or to punish for contempt,” according to a Congressional Research Service report. But the practice was carried over from the British House of Commons whose members were considered the “grand inquisitors of the realm”. (id., p.1) Congress’ power to investigate is implied from its enumerated powers and the Necessary and Proper Clause, all found in Article 1, Section 8.
The first Congressional investigation of the executive branch appears to have been in 1791, when prior business dealings of the Superintendent of Finance Robert Morris were called into question. (id., p.2)
The Supreme Court first placed limits on congressional investigations in 1821 [Anderson v. Dunn] (id. p.4). The Court upheld Congress’ power to hold people in contempt, but said Congress must use the least onerous means to achieve its legislative objectives and no term of imprisonment Congress imposed could extend beyond a Congressional term. In 1881, the Court placed more limits, saying Congress could not inquire into the personal affairs of individuals without actual “valid legislation” in mind. (id. p.5) This was later loosened to any legislative purpose, including oversight of alleged wrong-doing in the executive branch. (id. p.5) Oversight could potentially result in legislation, so a later Court viewed it as fair game for Congressional hearings and investigation.
The Supreme Court has also upheld Congress’ power to issue subpoenas as “an indispensable ingredient of lawmaking.” (id. p.6)
Congress has expanded its powers to investigate by statute on a number of occasions, notably after 1946. Congress beefed up oversight committee staff and upgraded the Government Accountability Office - GAO. Congress now requires more than 2,000 reports from the executive branch every year.
It’s a pretty safe bet that specific constitutional issues will come up as the House Democrats’ obsession with Donald Trump plays out. Will witnesses ‘take the 5th’ like Lois Lerner did? They’re certainly entitled to. The Supreme Court ruled that “[t]he Bill of Rights is applicable to congressional investigations, as it is to all forms of governmental action” in 1957 [Watkins v. United States]. Will Trump administration officials claim executive privilege and refuse to turn over documents? That didn’t work out so well for President Nixon [United States v. Nixon, 1974]. A unanimous Supreme Court rejected his claim of executive privilege and he resigned 16 days later. I’ll keep an eye out for specific issues that come up as the Democrats move forward and report back to you when I can add to your understanding of the constitutional dimensions of what is happening.
5A: Ohio can de-fund Planned Parenthood, 6th Circuit rules. There are no due process rights to PERFORM abortions or receive government subsidies for doing so.
5A Due Process: now a split among Circuit courts as to whether asylum seekers have access to the courts to contest their ‘credible fear’ claims (can stave off deportation)
3rd Circuit Court of Appeals flips to Republican majority with Trump appointees
14A Equal Protection: Ban on DACA applicants to Georgia state universities upheld (11th Circuit) (Georgia does allow some limited DACA admissions)
1A: Not quite sure how an executive order on campus free speech would be administered
1A: class action filed against California Teachers Association for noncompliance with Janus decision; still collecting forced dues
2A: federal judge allows federal case against Massachusetts AG assault rifle re-definition to proceed; issues presented separate and above state case
Discrimination: Iowa Supreme Court strikes down state’s ban on Medicaid coverage for transgender surgeries (state statute lists “gender identity” as a protected group)
5A: Alabama court grants legal rights to aborted baby
5A, Separation of Powers: Huawei makes due process, separation of powers claims in lawsuit against U.S. (Congress doing work of courts by stripping commercial opportunities from company)
Problem: the next Democratic President won’t be able to get their agenda past the Supreme Court. Solution: pack the Court, of course! #DejaVuAllOverAgain
1A: “Florida Bill Would Make It a Crime for Minors to Post Pictures of Guns on Social Media
Clearly unconstitutional, of course.”
1A: you have a constitutional right to give police officers the finger and, no, they can’t retaliate (6th Circuit)
1A: Fresno State professor ordered to pay $26,000, attend free speech sensitivity training for rubbing out student pro-life messages on sidewalk
1A: " Arizona HS Students Ask for AG Investigation After Being Kicked Off Campus Over Pro-Trump Attire and Flags"
Free Expression: UN bares its teeth again, wants criticism of migration criminalized
4A: police need a warrant to search a purse no longer on arrested woman’s person (10th Circuit)
6A: two new cases show speedy trial rights can be violated by government neglecting to secure timely psych evaluation and by trial court not explaining reasons for delay
14A: Anti-vaxxers take note - government can impose compulsory vaccination laws to save lives; there is no absolute right to liberty; it must yield to public health powers of the state
14A Equal Protection: “Minnesota Public High School Can't Have Girls-Only Dance Team” (8th Circuit)
Equal Rights Amendment fails in Arkansas
Gouverneur Morris turned the Constitutional Convention’s work product into a coherent draft, influencing the final text in the process
Cory Booker parts company with others on the Left, acknowledges racial difficulties have been overcome since the Constitution was written
Kudos: Optimist Club program to hand out pocket Constitutions and flash cards to students is now in its seventh year
When the civil rights movement started, it was about simple justice - affording remedies where discrimination could be proven with real evidence in individual cases. I handled such a case when I was a trial attorney - a black man was fired from a beer distributor and replaced with a white man who had previously worked there, and whose personnel file was marked ‘Do Not Rehire’. We found the proverbial smoking gun and got our client a nice settlement.
Unfortunately, civil rights moved on from there and the theories became more and more outlandish and poisonous. First came affirmative action - more discrimination to remedy previous discrimination, as in turning away Asian students from Harvard even though they are more qualified than the students of other races who are admitted. Then came structural racism - forget evidence of discriminatory intent in individual cases; we’ll just indict the whole society for being no darned good, without any evidence at all. And I’ve mentioned before Social Engineer-in-Chief former Justice Anthony Kennedy with his theories of unconscious bias which have been thoroughly debunked.
So I was glad to see that the Trump administration is considering an executive order to cut back on another overreaching civil rights theory - disparate impact, a heavy-handed approach aggressively pushed by the Obama administration. Disparate impact seeks to change outcomes in housing, hiring, consumer credit, student loans, student discipline, traffic stops, and many other domains on the basis of statistical disparities between racial groups - without any proof of discriminatory intent at all. Discrimination is considered proven if policies or practices have an unequal impact on one group versus another. Disparate impact theory is the reason landlords and employers have backed away from doing common-sense background checks on prospective tenants and employees, even though federal agencies routinely run background checks on their own hires. It’s also why mortgage lenders have gone back to making subprime loans in inner cities, to settle federal disparate impact lawsuits which have cost them billions in fines, even though federal pressure to make subprime loans was what caused the financial crisis of 2008. School violence spiked after Obama’s school discipline reforms, something that received a lot of attention at the time. Trump’s executive order, if signed, would prohibit federal agencies from using disparate impact theory in the application or enforcement of any civil rights law.
Disparate impact theory is not mandated by the Constitution. The 14th Amendment guarantees equal protection of the laws, but disparate impact theory is a concoction of bureaucrats that was adopted by the courts. Courts had to torture language in statutes to get to justify the theory. This was pointed out by the dissenters in a 2015 Supreme Court case, Texas Department of Housing v. Inclusive Communities. Justice Kennedy wrote the majority opinion extending disparate impact theory to housing, but I have to tell you it’s about the weakest opinion I’ve ever read, full of made-up stuff and make-weight arguments. Kennedy’s opinion was fundamentally dishonest, the most blatant example of results-oriented jurisprudence I’ve ever seen. Justice Thomas pointed out in dissent that the EEOC wrote openly of creatively reading disparate impact theory into statutes knowing they would get away with it because courts grant administrative agencies a great deal of deference. Justice Alito, also in dissent, illustrated the folly of disparate impact theory by relating the story of the housing authority in St. Paul which had tried to fix locks, get rid of rats, and bring about other improvements in rental properties. But this raised rents and was deemed impermissible because of the disparate impact of higher rents on minorities. Alito wrote: “Something has gone badly awry when a city can’t even make slumlords kill rats without fear of a lawsuit.”
Once again we see liberal policies are not just wrong. They actually hurt people, and disparate impact theory is no exception. The theory turns the presumption of innocence on its head and is manifestly unjust. Not every statistical difference is about race. The Constitution is supposed to be about equal protection, not back-door redistribution or guaranteeing equal outcomes.
But disparate impact theory will be hard to uproot, spread as it is through so many agencies and areas of law. The theory is the driving force behind scores of regulations, thousands of government lawsuits, and billions of dollars in fines. Not only that, a resistance campaign is underway and lawsuits against the possible removal of disparate impact regulations have already been filed. Congressional hearings are also in the works in the Democrat-controlled House. But with changes in personnel at the Supreme Court, this will be one to watch if President Trump follows through and signs the order.
1A Religion: Colorado ends persecution of Masterpiece cake baker Jack Phillips after evidence of hostility to religion surfaces (again)
1A: President Trump to sign executive order requiring colleges and universities to support free speech if they want federal research dollars
Citizenship: Alabama ISIS bride’s parents were essentially visitors in U.S. at time of her birth and, therefore, not subject to the full and complete jurisdiction of the United States
1A,4A,5A: Planned Parenthood and AMA sue Trump administration over rule preventing the promotion of abortion with taxpayer funds
1A: The liberal ACLU won’t support House Democrat election reform bill (H.R. 1) because it would interfere with free speech rights. Further objections: federalism, separation of powers, etc.
1A Religion: “6 Key Exchanges From the Peace Cross Oral Argument” (Gorsuch raises standing; current Lemon test criticized)
1A, 4A: appellate panel serves up mixed bag of results on unlawful search and religious discrimination claims in case involving undercover surveillance of Muslim community (9th Circuit)
1A: report argues private sector workers have free speech rights and employers can’t prevent them from talking to reporters
1A, 8A: even criminal motorcycle gangs have free speech rights; stripping them of trademarked logo would be excessive punishment
1A Commercial Speech: Missouri ‘meat’ law criticized as cronyism; little chance consumers confused by ‘veggie sausage’ or ‘tofu turkey’
Free Expression: Did you know we are all governed by Pakistan’s blasphemy laws?
1A,14A: Supreme Court turns away case testing New Jersey law prohibiting disbursement of historic preservation funds to religious institutions. (Yo, churches! Get off welfare; you’re making a deal with the devil.)
2A: ‘constitutional carry’ (no-permit needed) gun law enacted in Oklahoma
10A: legislation introduced in South Carolina to establish a committee on federalism to evaluate federal overreach
Article 1, Section 9: habeas corpus is available when people have significant restraints on their liberty (sex offender registry), not just when they’re in custody (Third Circuit)
Electoral College: Colorado set to join blue state move to circumvent the Constitution with National Popular Vote Compact
Appointments Clause: Robert Mueller is an ‘inferior officer’ not requiring Senate confirmation (D.C. Circuit)
George Washington’s active support was key to ratification of the Constitution
Reparations unconstitutional under current Supreme Court jurisprudence prohibiting special treatment for particular racial groups
Preamble to the U.S. Constitution can aid interpretation of substantive clauses and resolve ambiguity
The Flag is a Rag’ - Shame on Nebraska State Sen. Ernie Chambers! (Champions of the Constitution Grassroots Network pushes back)
I spoke to you in January about my proposed amendment to the U.S. Constitution to allow a super-majority of state legislatures to override the Supreme Court on constitutional questions. The campaign for the amendment is now underway.
I put up a webpage and sent the link to my mailing list. I will update the page from time to time.
The webpage has my Constitution Minute from January where I lay out the problem - authoritarian top-down directives from the Supreme Court - and the solution - an amendment to put power back in the hands of We the People where it belongs.
That’s as far as I’ve gotten. Next steps include gathering allies and preparing the ground for public acceptance of the amendment.
The best thing I’ve read on the subject recently came from Daniel Horowitz in Conservative Review in September. The article is entitled “Our Founders never thought the courts had the final say — and neither should we.” The article talks about a “dictatorship of the robes” that came about when the judiciary began to assert that its rulings applied outside the judicial branch. Prior to that moment, courts may have issued opinions on constitutional questions, but they were considered binding only on other courts, not on the other branches of government. In those days, Congress and the Executive branch were active participants in interpreting the Constitution.
But now, judicial review has become judicial exclusivity, with courts having the final say on constitutional questions and issuing opinions which purport to bind the entire country, not just the parties before them or other courts. In contrast, early in our history, Horowitz writes:
Horowitz concludes by saying:
It’s often said in Tea Party circles that people get the government they deserve. If we sit back and wait for another social engineer on the Supreme Court to tell us what to do and how to be, we will deserve our fate. Or we can do something about it - join me.
14A Equal Protection: federal judge in Texas rules all-male military draft unconstitutional (declaratory judgment only; no court order). #WelcomeToEquality
14A Equal Protection: Trump may issue executive order prohibiting government use of flawed and overreaching ‘disparate impact’ theory which dispenses with need to prove discriminatory intent in race cases.
5A Fundamental Rights: Climate Kids submit brief to 9th Circuit in interlocutory appeal of whether ‘riight to a sustainable environment’ case should proceed to trial
5A Fundamental Rights: federal judge in Philadelphia dismisses claim there is a constitutional rights to a “life-sustaining climate system”, expressly disagreeing with Oregon judge who affirmed such a right in Climate Kids case
1A: Supreme Court turns away workplace ‘Fight for 15’ buttons dispute; how broadly to read Janus will have to wait for another day
1A: Supreme Court hears case testing whether public access television is subject to free speech rules
1A: ”Defendant Has No First Amendment Right to Wear "Black Lives Matter" T-Shirt at Trial”
1A: Washington statute that criminalized cyberstalking - "anonymous or repeated" speech intended "to harass, ... torment, or embarrass" is unconstitutional because it outlaws protected speech (federal judge, Washington state)
1A: Mississippi engineer licensing board’s attempt to stop tire shop business from using the name ‘Tire Engineers’ violates commercial free speech rights (5th Circuit)
Free Expression - London police arrest street preacher, take his Bible
1A Free Press: 12-year-old reporter schools Arizona police officer on the First Amendment - yes you can record their faces and put them on the Internet
Gun Rights: “Venezuelans Now Regret Giving Up Their Guns to Socialist Chavez Regime”
6A: California judge rules undercover baby parts videos will be public during the trial
8A: Supreme Court sends death row case back to Alabama; condemned prisoners must understand what they are being executed for; this one had strokes and says he can’t remember his crimes
Commerce Clause: 40 projects on hold awaiting outcome of suit arguing Pennsylvania Turnpike tolls should only be used to maintain the Turnpike, not fund other transportation projects.
Amendments: Equal Rights Amendment goes down to defeat in Virginia
Judicial nomination points up schism on the right - some conservatives questioning appointment of libertarian Neomi Rao who appears to be pro-abortion, pro-gay marriage, pro-open borders and a fan of making up new fundamental rights.
Presidential contender Kamala Harris was born in California to two noncitizen parents - natural born citizen?
Tea Partiers have long been concerned about civil asset forfeiture, the practice of police departments seizing assets from, say, drug dealers, and selling them off. Nobody likes drug dealers, so what could go wrong?
Enough for a unanimous Supreme Court to rule this last week there are constitutional limits to civil asset forfeiture. A drug dealer in Indiana pled guilty, then the state moved for forfeiture of the man’s $42,000 Land Rover SUV the police had seized earlier. The man bought the SUV, not with drug money, but with the proceeds of a life insurance policy on his father who had passed away. The trial court observed $42,000 was four times the maximum allowable fine for the offense and denied the state’s request. The Indiana Supreme Court reversed, sending the case to the U.S. Supreme Court.
Justice Ruth Bader Ginsburg wrote the Court’s opinion. The issue was whether the prohibition against excessive fines in the Eighth Amendment of the U.S. Constitution applies to the states through what is called the incorporation doctrine. Most, but not all, federal rights have been incorporated and bar the states, not just the federal government, from infringing on those rights.
Justice Ginsburg wrote rights are not to be incorporated unless they are “fundamental to our scheme of ordered liberty,” or “deeply rooted in this Nation’s history and tradition.” Ginsburg found the principle of proportionality - that economic sanctions should be proportional to the offense - went all the way back to the Magna Carta. Proportionality also appeared many times after that, in the English Bill of Rights, laws of the American colonies, and three dozen state constitutions. She also noted excessive fines were used to keep slaves who had been freed from bondage in a state of perpetual involuntary labor. All of this was more than enough, in the Court’s view, to apply the Eighth Amendment’s prohibition against excessive fines to the states through the Due Process clause of the 14th Amendment.
Justice Thomas and Justice Gorsuch concurred in the result, but wrote separately to suggest that the proper route to the result is through the Privileges & Immunities clause, not the Due Process clause. There is quite a debate going on in conservative legal circles about the meaning of the Privileges & Immunities clause, but that’s a subject for another day.
For now, the Court’s decision curbs the abuses of civil asset forfeiture and reins in what critics have called ‘policing for profit’. Some cities were getting as much as 30 percent of their budget from the practice. Talk about gangster government, wow! Justice has been served because the financial conflict of interest has, to a large extent, been removed. Justice Ginsburg noted another abuse in her opinion - large fines can be used to chill free speech or retaliate against political enemies. The potential for that abuse in the states is much less after the Court’s decision.
However, I should note that fans of state sovereignty will not like the reasoning in this case. To the extent state sovereignty ever really existed, the incorporation doctrine is another nail in its coffin. Civil asset forfeiture, like so many other areas of the law, has now been federalized - Washington has spoken. Before this case, states were free to impose excessive fines, but not anymore. Under our system, the federal government is supposed to have limited powers and the states are supposed to have powers of their own. Tea Partiers like federalism for this reason, but our challenge is to find constructive ways to revitalize state power as a check on a central government that has been growing increasingly more powerful and less accountable over time. The result in the asset forfeiture case last week may have been correct, but the case didn’t make the task of revitalizing federalism any easier for us.
Webinar: Conscience as the Most Sacred Form of Property. Explore Madison’s thought that natural rights are our property, with Gary Porter the evening of March 11th. $10 - register here -
8A: Supreme Court unanimously rules state and local governments may not impose excessive fines, which will sharply curtail their use of abusive civil asset forfeitures
8A: Ending Civil Asset Forfeiture Abuse in Tennessee (new article by Knoxville Tea Party)
8A: Supreme Court finds Texas man intellectually disabled, blocks his execution
14A: city ordinance barring female toplessness discriminates against women, 10th Circuit panel rules. Women’s breasts are not erotic, that’s just a stereotype, opinion says. Glad we got that straightened out.
Separation of Powers: 16 states file suit against the President’s national emergency declaration, arguing Congress did not appropriate for the wall the money Trump is repurposing
Census: Supreme Court to rule quickly on whether citizenship question can be put on census form. (Article I, Section 2, Clause 3)
Appointments Clause: appointments to the Puerto Rico bankruptcy board held unconstitutional; board members deemed ‘officers of the U.S.’ but not confirmed by the Senate
1A: 14 of 15 criminal charges against Center for Medical Progress journalist dismissed in connection with undercover baby parts sting videos involving Planned Parenthood
1A: 7th Circuit panel upholds Chicago ‘bubble zone’ ordinance prohibiting ‘sidewalk counseling’ near abortion clinics, but relies on discredited Supreme Court precedent
2A: study finds that comprehensive background checks for gun sales did not reduce homicide or suicide rates in a 10-year period in California.
2A: New York bill would require examination of years of your Internet activity before you could buy a gun
4A: police officer touching a tire is a search under property rights (trespass) theory of the Fourth Amendment (5th Circuit)
4A: it is NOT reasonable for officers to assume that a woman who answers the door in a bathrobe has authority to consent to a search of a male suspect's residence (7th Circuit)
5A: many eminent domain headaches await Trump’s border wall
13A: New Hampshire bill would impose Medicaid quota on doctors
14A: Supreme Court case to test contours of idea lawyers can’t use peremptory challenges to exclude jurors for racial reasons
14A: Washington State “misleading voter initiative seeks to repeal I-200, which banned state-sponsored discrimination or preferential treatment based on race, sex, etc.”
21A: “residency requirements for retail liquor licenses in Tennessee has raised an array of legal and constitutional questions”
Article V Convention: Arkansas becomes the 13th of 34 states needed to approve constitutional convention
Libel: Justice Thomas wants Court to reexamine New York Times v. Sullivan defamation precedent and possibly make it easier for public figures to sue media outlets for fake news
Judicial supremacy is inconsistent with popular sovereignty, i.e. the rightful authority of a self-governing people
February 15, 1879 - the day women were first permitted to argue before the Supreme Court
Kudos! 6- and 8-year-old boys stop, place their hand over their heart, and recite the Pledge of Allegiance as flag raised at their North Carolina town’s firehouse
1A Religion: Christian student group wins in court, can choose own leaders
1A: federal judge upholds Arkansas anti-BDS law forbidding state agencies from dealing with companies that boycott Israel (other courts have gone the other way)
5A Fundamental Rights: failure of South Dakota bill affirming parental rights to resist the transitioning of their gender-confused kids should terrify parents
Amendment to affirm a constitutional right for parents to “direct the upbringing, education, and care of their children” introduced in the House
14A Due Process: Supreme Court declines to stay execution of Muslim inmate in Alabama who had sued to have imam present in death chamber.
1A: forcing students to fill in world history course worksheet with ‘no god but Allah’ does not establish a religion or compel speech (4th Circuit) #CreepingSharia
Free Expression: Islam very successful in suppressing criticism of its treatment of women; feminists overlook “child marriages, forced marriages, female seclusion, honor killings, gang rapes of infidel women, or the enslavement and sale of females for sex slavery.” Not to mention FGM.
Free Expression: English woman arrested for ‘misgendering’ trans activist on Twitter
Free Expression: tech giants that punish social media users for ‘misgendering’ are killing freedom of expression
1A Right of Association: Women suing for sexual harassment at Yale fraternities seek to have them opened to women. #ABridgeTooFar
1A Right of Association: the section of the Delaware Constitution requiring judges to be Republican or Democrat is unconstitutional
1A: gun groups file suit against New Jersey for law criminalizing the sharing of gun blueprints online
2A: map shows many more states now allowing concealed carry than in 1986
2A: Washington State sheriff refuses to enforce state’s restrictions on ‘assault rifles’
5A Due Process: new lawsuit claims holding immigration court by videoconference limits access to justice and is a pretext for speeding deportations https://www.nytimes.com/2019/02/12/nyregion/immigration-court-video-teleconferencing.html
14A Equal Protection: trade association objects to Pennsylvania bill that would tax adult video games an extra 10%
Electoral College: Dems pushing National Popular Vote Compact in their ‘trifecta’ states
State Constitutions: rational basis test for substantive due process and equal protection claims under state constitutions tougher than in Supreme Court ‘anything goes’ jurisprudence
Judicial ‘minimalism’ explained - courts should avoid broad sweeping declarations and decide cases on the narrowest ground possible
Whatever notions you have about traffic camera speed traps being unconstitutional, forget it says Iowa Supreme Court
“George Washington Letter on God and the Constitution Revealed”
I have three items for you tonight - the green new deal, an abortion ruling, and a case about discrimination against Israel.
First, a green new deal resolution was introduced in the House this past week with 67 co-sponsors. I couldn’t find any articles analyzing the constitutionality of the resolution, which troubles me. Here you have an outlandish proposal and nobody is even asking whether it’s constitutional. When I looked over the resolution myself, I found a lot of familiar ingredients, and nothing jumped out at me as being unconstitutional, when the resolution is taken at face value. The ingredients have long been considered constitutional, things like regulating agriculture and the environment; government spending on infrastructure and public transit; and upgrading buildings. The promise to get rid of planes was widely ridiculed, but it’s from an earlier draft that talked about having so much public transit and hi-speed rail that jet travel would no longer be necessary, not taking planes by eminent domain under the 5th Amendment to the U.S. Constitution. The resolution talks about moving to 100 percent renewable energy, but government policy has long favored some forms of energy over others. The proposal is short on specifics, but it does not say that fossil fuels must be left in the ground, which would raise regulatory taking issues under the 5th Amendment. Even if regulatory taking issues come up in the implementation of the resolution, those cases are tough to make. What about guaranteeing everyone a job, whether they want to work or not? It might not be good policy, but we’ve had social programs in this country for a long time. No, the biggest constitutional objection to the green new deal I can see at present is the spirit of the thing. The massive “10-year national mobilization” would turn everything upside down and interfere with everyone’s lives. The government is not supposed to be that intrusive. It sounds more like North Korea, where people are mobilized to pick berries and nuts for Dear Leader, than America to me. We’re supposed to have limited government in this country, not massive government overreach, or mass mobilizations in peacetime whenever politicians say jump.
Second item: There was a lot of commentary this past week about Chief Justice Roberts going over to the dark side and joining the four liberals on the Supreme Court in temporarily blocking abortion restrictions from taking effect in Louisiana. The Tea Party and thus my commentaries usually stay away from social issues, but Roberts’ decision is instructive in understanding how the Supreme Court works in general. Roberts is, first and foremost, an institutionalist. He can be expected to act in what he considers to be the best interests of the Supreme Court as an institution. The Supreme Court is always reluctant to overturn precedent, and is even more reluctant to do so when the case is at an intermediate stage. The posture of the abortion case this past week was not a final ruling; it was a request for an injunction while the case proceeds below. Roberts was not going to get into whether or not to overturn Roe v. Wade or other aspects of abortion jurisprudence on an interim procedural matter. What he will do when another abortion case is finally and squarely presented is still anybody’s guess.
Finally, keep your eye on BDS. There’s a First Amendment issue that may end up in the Supreme Court. BDS is the Boycott, Divestment and Sanctions movement against Israel. This past week, a federal judge upheld an Arkansas law forbidding state agencies from dealing with companies that boycott Israel. The ACLU had argued on behalf of a newspaper that the law violates free speech, citing precedents from civil rights boycotts. The newspaper had refused to sign a pledge never to boycott Israel as demanded by a state college that was an advertiser in the paper. The court ruled that a business boycott is commercial conduct and not a speech issue at all, citing Supreme Court precedents. But courts in Kansas and Arizona have gone the other way and the issue is currently before the 9th Circuit Court of Appeals. I expect one or more of the anti-BDS cases to eventually make its way to the Supreme Court.
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