Two weeks ago, the Supreme Court ruled, as a matter of federal statute, employers cannot fire employees simply for being homosexual or transgender. [Bostock v. Clayton County, Georgia] Justice Neil Gorsuch wrote the opinion for the Court. The opinion purports to interpret the terms of Title VII of the Civil Rights Act of 1964 in accordance with their ordinary public meaning at the time of enactment. Title VII forbids discrimination on the basis of, among other things, race, religion, and sex. The parties agreed that the term “sex” in 1964 referred to the biological distinction between male and female. So how does Gorsuch puff up the term ‘sex’ to include sexual orientation and gender identity? The opinion is an amazing display of how the Court can turn night into day when it wants to reach a particular result.
Here’s the core of Gorsuch’s reasoning: Because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalizes an employee for being homosexual or transgender violates Title VII which outlaws discrimination on the basis of sex. Gorsuch is essentially saying that ‘sex’ is necessarily involved in discussing whether people are gay or transgender, so Title VII applies. But people also breathe, so it’s like saying breathing is the key fact that decides the case. The logic could be used to add discrimination against blonde people to the statute. You can’t talk about blonde people without referring to the fact they are human beings who possess male or female sex attributes. To take such a worthless truism - that all people are of the male or female sex - and use it to make law is preposterous.
Gorsuch goes on to drag in extraneous issues and declare that specific court precedents are binding when they don’t really apply to the matter at hand. The whole thing is a house of cards built on judicial doctrines, nothing Congress did or said. Gorsuch dismisses Congress entirely. The employers argued Congress could have included sexual orientation and gender identity when passing Title VII, or add them at any time, but did not. Gorsuch turns this on its head, saying Congress didn’t specifically exclude those categories so the Court is free to add them. So much for the pretense that he is simply applying the original public meaning of these terms from 1964.
The whole thing is ludicrous. There’s lots of fancy dancing. Gorsuch strains every step of the way, and that tells me something’s not right. This is results-oriented jurisprudence at its worst. It undermines federalism, by putting Washington in control of contentious social issues best left to the laboratories of the 50 states. It weakens Congress as an institution and empowers the Supreme Court in ways the Founders never intended. Cowardly Congress critters may be breathing a sigh of relief that this nettlesome political issue has been taken off their hands, but they are complicit in damaging the power of their own institution. The Court’s opinion was all about statutory interpretation, not constitutionality. Congress could reverse this decision, but don’t hold your breath. As for the Court, Senator Josh Hawley and others are saying that it’s time to stop placing so much hope in nominating conservative Justices and to start figuring out how to rein in the runaway Court as an institution. One solution that’s been put forward is a proposed constitutional amendment to give a super-majority of state legislatures the power to reverse the Court on constitutional questions, a solution I’ve mentioned before on these webinars.
There are lots of implications and questions arising from this decision. First, I worry we have another Anthony Kennedy in the making, a Supreme Court Justice who doesn’t understand or doesn’t care it’s not the Court’s job to dabble in social engineering. The fundamental dishonesty of Gorsuch’s opinion reminds me of the fundamental dishonesty of Anthony Kennedy’s opinions. Also, it’s disturbing that Gorsuch has adopted the language of the Left in minimizing biological sex, portraying it only as something that is ‘assigned at birth’ and, therefore changeable when the truth of the matter is that it’s not changeable, not even with mutilating surgery and a lifetime of powerful drugs to suppress Mother Nature.
Second, the Trump administration recently reversed an Obama-era rule restricting transgender services in government healthcare programs, saying there was no statutory authority for the rule. Arguably, the recent case is limited to its facts - the employment context - and does not apply the healthcare context. But the Trump administration could easily decide to bow to the inevitable and abandon its transgender healthcare rule.
Finally, and of critical importance, the battleground now shifts to the question of whether religious employers, churches, schools, and charities are exempt from civil rights statutes like Title VII, or will have to comply with them. There’s a showdown coming between religious liberty and gay and transgender rights. Will religious institutions be forced to hire gays and transgenders in violation of the institution’s religious doctrines? What about their conscience rights, and the fact that this entire country was founded by people who came here seeking religious liberty? Is all that to mean nothing and we must now all comply with a new orthodoxy pushed on everybody by a tiny percentage of the overall population? The day is not very far off when we will begin finding out what kind of country we really are.
1A Religion: Supreme Court rules states cannot bar religious schools from scholarship programs; case involves Montana, but 38 states have similar laws.
14A Fundamental Rights: Supreme Court strikes down Louisiana law requiring abortion doctors to have hospital admitting privileges
Separation of Powers: Supreme Court rules CFPB director whom President cannot fire is unconstitutional, but lets agency stand
1A: Bill to ban hate speech from social media is still pending in New York (the drumbeat to outlaw hate speech is growing louder)
Free Expression: House Dems harassing conservative nonprofits (again); demand years of communications from 23 nonprofits with Marathon Petroleum on rollback of Obama-era fuel efficiency mandates
2A: federal judge strikes down Jackson, Mississippi’s open carry ban; open carry legal in the state
Separation of Powers: it’s OK for federal courts to adjudicate intrabranch disputes between federal agencies when at least one agency is independent
State Constitutions: California pro-affirmative action amendment to be decided by ballot in November election; critics say it would legalize racism and sexism
Separation of Powers - After Supreme Court defeat, the Trump administration said it will try again to end the DACA program within 6 months
Gentle Reminder: Incitement to riot is not protected by the First Amendment
1A: Woke Georgetown students declare ‘oppressive language is violence’, blah-blah
1A: prisoner’s claim against prison officials for hijacking correspondence with his lawyer survives motion to dismiss
1A: California law prohibiting the publication of Hollywood stars’ ages and birthdates is unconstitutional (9th Circuit)
1A / RLUIPA - California court OK’s restrictions on church to help city create “a street of fun” even though nursing homes and post offices operate downtown unimpeded
2A: Johns Hopkins report on Baltimore finds that arresting people on gun charges does nothing to lower crime
4A: Continuous non-stop surveillance of house by camera is constitutional (1st Circuit)
4A: Yikes! 7th Circuit affirms lower court ruling that hanging a tree-shaped air freshener from your rearview mirror justifies a traffic stop and any evidence seized is fair game.
State Constitutions: New Mexico Supreme Court denies privacy claim, upholds warrantless grand jury subpoenas for personal banking records
5A: phone decryption issue likely headed to Supreme Court after Indiana Supreme Court rules defendants can’t be compelled to incriminate themselves by order to unlock their phones
14A: Clarence Thomas dissent rejects incorporation doctrine and concludes free speech is protected from state restrictions by the Privileges or Immunities clause
Shame! Ignorant ingrates tear down George Washington statue in Portland, wrap it in burning U.S. flag
Discrimination: Supreme Court decision protecting LGBT rights in the workplace sets up the next battle which will be over exemptions in civil rights laws for religious employers
1A Religion: D.C. Mayor gets sued for Black Lives Matter street painting; suit alleges she is promoting an orthodoxy in violation of 1A Establishment Clause
1A: Charleston cannot require tour guides to get a license or jump through educational hoops; city can’t prove any of that protects the public (4th Circuit)
Leftist writer bemoans the fact that Hugh Hewitt stands up for the “undemocratic” Electoral College and two-senators-per-state provision of the Constitution. There’s only one problem: we don’t live in a democracy with its tyranny of the majority, and that’s by design. #ARepublicIfYouCanKeepIt
In 2014, a SWAT team executing a no-knock warrant in Georgia, threw a flash-bang grenade that landed in a child’s playpen causing blast injuries to the child’s face and chest. The child’s nose was separated from the underlying bone. The child was placed in a medically-induced coma and underwent several complex surgeries. The county ended up paying $3.6 million to settle the case. The raid yielded no drugs, no drug dealer, and no weapons.
Fast forward to today and the name Breonna Taylor is being chanted by protesters across the country seeking police reforms in the wake of George Floyd’s unjustifiable death in police custody. Breonna was killed during the execution of a no-knock warrant in Kentucky after police smashed down the front door and her boyfriend opened fire, not knowing who the intruders were. Again, no drugs were found and a lawsuit was filed.
The Fourth Amendment of the U.S. Constitution, which applies to the states under the Supreme Court’s incorporation doctrine, is silent on the question of whether law enforcement officers must announce their identity and purpose when executing search warrants based on probable cause.
In 1958 [Miller v. U.S.], the Supreme Court ruled the police must give notice before making a forced entry, but created an exception in 1995 to prevent the destruction of evidence [Wilson v. Arkansas]. Federal law enforcement must generally knock-and-announce under the terms of a federal statute, although there are some exceptions in that law [18 U.S.C § 3109].
The use of no-knock warrants has substantially increased, from 1,500 a year in the 1980s to 45,000 in 2010 by one estimate. Thirty-one civilians and eight officers died during the execution of no-knock warrants from 2010 to 2016. There have been at least seven settlements of a million dollars or more. It’s been estimated that 42 percent of SWAT warrants are executed on blacks and another 12 percent on Hispanics. They may have higher crime rates, but you can see how this is causing resentment and racial animus.
Oregon state law bans no-knock warrants and the Florida Supreme Court invalidated them in that state. Thirteen states specifically allow no-knock warrants and 20 more routinely grant them.
The Louisville, Kentucky city council just passed ‘Breonna’s Law’ banning no-knock warrants. Senator Rand Paul of Kentucky introduced a bill to prohibit federal law enforcement and local police that receive federal funding from using them. House Democrats propose to ban no-knock warrants in drug cases.
Law and order is one thing. Being stupid about it is another. The question is whether, in light of all the ruinous consequences, the use of no-knock warrants is an indispensable tool in fighting crime. One former police chief-turned-consultant is of the opinion that, if a quantity of drugs is so small it can be flushed down the toilet if police announce themselves, then it’s not worth getting a warrant in the first place. However, fentanyl might change the analysis. Minute quantities are now routinely cut into other drugs which can be sold for millions of dollars. I’m not an illicit drug expert - I don’t even play one on TV - but a thoroughly reasoned position on no-knock warrants might be harder to develop than critics and protesters want to believe.
Shame! “Burn down this f*ing Constitution,” former SNL star says. Would that be the same Constitution that protects her rights to express her opinion and earn a cushy living through acting?
1A: city painting ‘Black Lives Matter’ on city street does not require equal time for competing messages, law prof says
Protests put qualified immunity from liability for violating constitutional rights under the microscope - totally made up by judges without any historical basis (Clarence Thomas)? Or needed to protect police from mistakes involving split-second judgments? Eight cases pending at Supreme Court.
Right to International Travel: Georgia claimant argues it’s unconstitutional to deny passports to people with unpaid taxes
2A: Defensive Gun Use Database shows how law-abiding gun owners protect individual rights and public safety
4A: unconstitutional for police to conduct a criminal investigation under the guise of getting housing inspector to issue administrative warrant for property code violations (9th Circuit)
8A: man who won civil asset forfeiture case at U.S. Supreme Court gets his Land Rover back after 7 years, but state STILL won’t give up; appealing to Indiana Supreme Court for the third time
10A: the Left turns on a dime, LOVES federalism and state sovereignty now that they are being used to keep Trump from undoing state pandemic orders
Separation of Powers: Department of Labor indefensibly created federal contract office out of thin air; office adjudicates and assesses penalties without congressional delegation of authority
President Trump threatened to invoke the Insurrection Act to put down the riots occurring after the death of George Floyd in police custody. The President said, "If a city or a state refuses to take the actions that are necessary to defend the life and property of their residents, then I will deploy the United States military and quickly solve the problem for them." He hasn’t done it yet and the question is: would it be constitutional?
The U.S. Constitution is mostly silent on the question of presidential emergency powers and martial law. Article I, Section 9 allows habeas corpus to be suspended “in Cases of Rebellion or Invasion” when the public safety requires it. We’re not being invaded and the current circumstances fall short of a full-fledged rebellion. Abraham Lincoln suspended the writ of habeas corpus, but there was an actual civil war going on at the time.
That’s it for the text of the Constitution. Now let’s look at federal statutes. The Posse Comitatus Act was passed in 1878 to prevent the use of the U.S. military to enforce domestic policy inside the United States. However, the Act is subject to the provisions of the Insurrection Act of 1807 and its later revisions.
The Insurrection Act, as amended, authorizes the President to use military and National Guard troops within the United States:
The Insurrection Act has been invoked at least 20 times - first in conflicts with Native Americans, then labor conflicts, slave rebellions, to suppress the Ku Klux Klan, to desegregate public schools in Little Rock in 1957, to put down riots in D.C., Chicago, and elsewhere in the late ‘60s, as well as the Los Angeles riots of 1992. George W. Bush wanted to use the Act to intervene after Hurricane Katrina when the governor of Louisiana refused to ask for help, but did not. The Act was changed in 2007 to allow the use of the military without state consent in emergencies, but that was quickly repealed after all 50 governors objected.
Alan Dershowitz wrote about using the Act in the circumstances we are in today:
I’m not so sure the same pattern would hold today. Consider the following scenario: Trump issues a proclamation he will use the Insurrection Act and send troops if rioters don’t disperse. Former President Obama immediately gets on a plane to visit his friend, the federal judge in Hawaii, who issues a nationwide injunction against the use of the Insurrection Act in a case he cooks up with the ACLU. The generals at the Pentagon immediately voice their approval of the Hawaii judge’s action. Where would we be then? Uncharted waters in uncharted territory in an uncharted universe.
Maybe it’s better to let the governors take the lead in this, after all. I must confess, though, that I do like the idea of not allowing federal money to be spent to repair the damage the riots cause in states where the governors decline to ask for the National Guard to be sent in. If they want to stand down, defund the police, abolish their police departments, and try to make friends with bears, the consequences should be on their dime, not mine.
1A Religion: Supreme Court upholds California emergency orders restricting religious worship (Roberts joins the liberals)
8A: Supreme Court approves federal judge’s order to transfer medically vulnerable Ohio inmates to safer conditions during pandemic
5A Fundamental Rights: Sixth Circuit to Rehear "Right to Literacy" Case En Banc
5A: Third Circuit upholds due process in campus sexual assault cases
14A Equal Protection: “Federal Judge Rules Florida Cannot Bar Ex-felons Who Cannot Pay Fines, Fees From Voting”
Amendments: Louisiana Senate rejects Convention of States resolution
Appointments Clause: Supreme Court upholds federal financial oversight board for Puerto Rico
14A Fundamental Right: new Oklahoma law allows wrongful death suits against abortionists who fail to disclose risks or check for coercion - ‘undue burden’ on fundamental right to abortion?
4A: Louisville suspends ‘no-knock’ warrants; woman killed after unannounced entry
1A: Supreme Court turns away case trying to apply Janus logic to bar dues; lawyers compelled to support bar association positions they disagree with
The future of the FISA court is in doubt. Nancy Pelosi and other supporters of the court had hoped for a quick reauthorization of three parts of the FISA surveillance program, but a tweet from President Trump caused Republican support to erode. Also, Democrats defected over privacy concerns. Nancy Pelosi pulled the bill and the House voted to send the matter to a conference committee with the Senate.
Before this vote, President Trump had tweeted:
This broadens the scope of the inquiry beyond the three sections originally at issue, and may put the entire FISA process up for grabs in conference committee.
How much sympathy you have for the FISA court depends on what scenario is running through your head. Is terrorist activity afoot and lives will be lost unless the court acts quickly? Or is the court all too willing to grant warrant applications from the FBI based on unverified information produced by political operatives intent on sabotaging an opposition presidential candidate and incoming administration? Both scenarios are true.
There are two major constitutional issues with the FISA process. The first is the Fourth Amendment and civil liberties concerns arising from the surveillance process. The government seeks and the FISA court routinely grants generalized search warrants without reference to the facts of any specific case. General warrants are usually a big constitutional no-no. Critics say the court has gone off the rails by puffing up the ‘special needs’ exception to the Fourth Amendment. The Supreme Court created the exception, but has thus far confined it to narrow circumstances where a minimal intrusion on privacy is justified by the government's need to combat an overriding public danger. Drunk driving checkpoints provide one example. But now we have a secret court authorizing the collection and sifting of mountains of data whenever the government claims there are threats from espionage, cyberattack, or nuclear proliferation. These critics say the FISA court has created a secret body of law incompatible with Supreme Court jurisprudence in the process.
The second major constitutional issue revolves around Article III. Article III places the judicial power in the Supreme Court and such lesser courts as Congress may establish. However, some critics say the FISA court isn’t a court at all. No other court meets in secret, or holds proceedings without there being a case or controversy at bar. The FISA court approves warrants, but there is only one party - the government. There is no case being tried. Also, there is no right to counsel. The people who are to be surveilled don’t even know the court is meeting. An advocate sometimes speaks on their behalf, but the advocate isn’t even allowed to see the information the government is presenting to the court in support of its warrant application. Unsurprisingly, given the way things are set up, it’s exceedingly rare for the court to deny a warrant application from the government, leading critics to say the court is nothing more than a rubber stamp.
Thus, the FISA court is a Frankenstein creation, neither beast nor fowl. In this, it has something in common with the Consumer Financial Protection Bureau, a Franken-agency - the first independent agency ever headed by a single person whom the President could not fire except for cause. [Constitution Minute, 12/3/17] When I spoke to you about the CFPB in 2017, I mentioned the country runs into problems whenever we stray from the Founders’ designs. Another example is the War Power, which I spoke to you about the same year [Constitution Minute, 11/13/17], where we strayed from the Founders’ design that only Congress would have the power to declare war. The War Powers Resolution of the 1970s authorized Presidents to start military conflicts on their own and the result has been controversy about the constitutionality of presidential military actions ever since.
Some say the FISA court as we know it is dead and only two choices lay ahead - either meaningful reform of the current system, or throwing it all out and starting over from scratch. Let us hope, whatever happens, the end result is more faithful to the Fourth Amendment and the separation of powers than the system we currently have.
Emoluments: 4th Circuit denies Trump’s motion to dismiss emoluments clause case
Emergency Powers: critics say House Democrat legislation for COVID testing and tracing is unconstitutional
14A Equal Protection: U.S. citizen children of undocumented parents file class action to challenge exclusion from $2 trillion COVID relief bill
4A: Senate kills amendment to keep FBI from obtaining Internet search histories without a warrant
Arizona appeals decision knocking down its ballot harvesting law to Supreme Court
1A: Supreme Court sidesteps First Amendment challenge to federal statute making it a come to encourage illegal aliens to stay in the country; Court sends case back for further proceedings on the issues raised by the parties, not the issues the lower court wanted to inject into the case
1A: Minnesota AG Keith Ellison intervenes in lawsuit to defend state harassment statute used to charge woman filming mosque violations
1A: ICYMI, student government at Michigan State asks police to investigate anonymous racist comments made during online forum; police decline; FIRE watchdog group sent letter reminding everyone offensive comments are protected by the First Amendment
1A: “The Tyranny of the Marginalized - The campaign to curtail speech in order to promote social justice is gathering strength.”
Free Expression: Libs line up to deplatform Michael Moore over his latest film which exposes renewables and icons of the environmental movement
Canadian government decree makes 1,500 firearms illegal; that’s what happens when you don’t have a Second Amendment
5A Eminent Domain: 9th Circuit sticks with ruling that a California regulation requiring agricultural businesses to allow union organizers onto their property is not a taking
Habeas Corpus: critic flays 6th Circuit decision granting relief to woman convicted of felony murder on her claims of prosecutorial misconduct and ineffective assistance of counsel
Commerce Clause: Private investigator challenges Utah’s state residency requirement for professional license (only such law in the country)
Book due in October - “A Glorious Liberty: Frederick Douglass and the Fight for an Antislavery Constitution”
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