Illegal aliens defy our law and should not be armed, court rules (Constitution news round-up)1/16/2019
2A: illegal aliens defy our law and should not be armed, 9th Circuit says in upholding federal gun ownership ban http://reason.com/volokh/2019/01/09/ninth-circuit-upholds-federal-ban-on-gun Equal Protection: federal trial court knocks citizenship question off census, but discrimination claim not proven; appeal expected and 5 other cases pending https://www.thedailybeast.com/judge-trump-administration-cant-add-citizenship-question-to-census Advice & Consent: Supreme Court turns away challenge to acting AG Whitaker appointment https://www.thegatewaypundit.com/2019/01/supreme-court-rejects-challenge-to-president-trumps-appointment-of-ag-whitaker/ 4A: feds can’t force suspects to unlock their phones with biometrics, federal magistrate rules in likening it to self-incrimination https://www.engadget.com/2019/01/15/judge-biometrics-unlocking-rule/ 14A Equal Protection: religious institutions are exempt from gender identity nondiscrimination ordinance, Wisconsin judge holds https://freebeacon.com/politics/wisconsin-judge-rules-in-favor-of-religious-freedom/?utm_source=Freedom+Mail&utm_campaign=6eee1be264-EMAIL_CAMPAIGN_2019_01_14_10_10_COPY_01&utm_medium=email&utm_term=0_b5e6e0e9ea-6eee1be264-45628225 1A: state law preventing removal of Confederate memorials violates local governments’ free speech rights, Alabama state judge rules http://reason.com/volokh/2019/01/15/alabama-judge-strikes-down-state-law-pro 1A 14A: Young Americans for Freedom sues University of Florida for arbitrariness in deciding which student groups get budgeted http://raisedonhoecakes.com/ROH/university-of-florida-sued-by-conservative-student-group/ 1A: Christian artists challenge Arizona law imposing jail time for refusing service for same-sex weddings http://insider.foxnews.com/2018/11/29/christian-artists-could-face-jail-az-refusing-service-same-sex-couples?fbclid=IwAR13RdGkXrTgjaojhY4oGBmWyfjXG3D245B2b01YmyZi3xk-x-5dxFzmh3Y 2A: Boston mayor wants to force doctors to ask patients about guns in the home https://www.bizjournals.com/boston/news/2019/01/10/gun-discussions-drug-treatment-on-mayor-walshs.html 2A: The Soviets confiscated guns, the Nazis disarmed the Jews, Cuba and Venezuela... You get the idea https://mises.org/wire/brief-history-repressive-regimes-and-their-gun-laws 2A: Study shows California background checks had no impact on gun deaths. Stupid liberal researchers puzzled. https://fee.org/articles/california-s-background-check-law-had-no-impact-on-gun-deaths-johns-hopkins-study-finds/?utm_campaign=FEE%20Daily&utm_source=hs_email&utm_medium=email&utm_content=68117936&_hsenc=p2ANqtz-_gSREwUs0goo_OKzpVYGZi1cGuEXwkmLjkhqmLjdFyJZUevhABFK9l1BdtoHI9hWYJwC1nKF3DDZ7bCuI3ognfTgaBTQ&_hsmi=68117936 5A Takings: Kelo has limits; taking for economic development OK but not ‘take now, decide later’; can’t stockpile land for future whatever (New Jersey case) https://www.njcourts.gov/attorneys/assets/opinions/appellate/published/a4556-17.pdf 5A Takings: New York Mayor de Blasio threatens to seize buildings belonging to ‘bad landlords’ https://www.nydailynews.com/news/politics/ny-pol-deblasio-state-of-the-city-address-20190110-story.html Article II: President Kamala Harris declares national climate change emergency – do you like the sound of that? Reconsidering Trump and the border wall. http://reason.com/volokh/2019/01/11/some-conservatives-recognize-the-risks-o + http://reason.com/volokh/2019/01/10/my-op-ed-on-trump-emergency-powers-and-t Economic Freedom: new Ohio law sunsets all state licensing boards every 6 years and forces them to justify their existence https://www.forbes.com/sites/nicksibilla/2019/01/09/new-ohio-law-takes-aim-at-occupational-licenses-which-cost-state-6-billion/?fbclid=IwAR2LWKKMvMRkwQEz0bgNW8CTofAy_9hPtdc26Ob0m7PR0NqzciMrHXnHx7Y#299da3f96e95 Electoral college a bulwark against direct democracy’s mob rule https://www.teapartypatriots.org/news/why-the-electoral-college-matters-today/?mid=39034&id=T15OuHulZKxtwhqSTA Electoral college doing its job, giving voice to small states and preventing presidential elections from being decided by two cities (see towards the end) https://video.foxnews.com/v/5987082589001/?fbclid=IwAR1Gqag2xKNyWLTVtPD5Dme_XuVrvdgB7i30dc2JswjKNHHfQ381FUwGWQ4#sp=show-clips National injunctions: both sides have lots to fear from nationwide orders from lower courts and should be able to agree to rein them in https://www.washingtonexaminer.com/opinion/congress-should-restrict-national-orders-from-district-judges Article V Convention – phony petition signatures alleged in Idaho (It’s not the first time Con Con advocates have been accused of fraud) https://www.thenewamerican.com/usnews/politics/item/30573-alex-newman-dorothy-moon-exposes-fraud-by-con-con-peddlers?fbclid=IwAR0msB_8fyvgBm3j2QnREg6qsU-SXY-IVsn4yBy1kiQtNSVW3cTISO67ZF4 Shame! Nancy Pelosi says the Constitution considers her the equal of the President when it clearly does not https://freebeacon.com/politics/pelosi-the-constitution-considers-me-trumps-equal/?utm_source=Freedom+Mail&utm_campaign=15a6de3c8b-EMAIL_CAMPAIGN_2019_01_11_05_43_COPY_01&utm_medium=email&utm_term=0_b5e6e0e9ea-15a6de3c8b-45628225 Shame! Wharton prof proposes blatantly ignoring Article V and passing a law depriving states of their equal suffrage in the Senate without their consent https://freebeacon.com/blog/no-the-atlantic-you-cant-reapportion-the-senate-with-an-act-of-congress/?utm_source=Freedom+Mail&utm_campaign=94b5cec881-EMAIL_CAMPAIGN_2019_01_03_10_41_COPY_139&utm_medium=email&utm_term=0_b5e6e0e9ea-94b5cec881-45628225 Help – I’m being ruled by Anthony Kennedy! Or at least I was, until he retired last year. Which begs the question: who will be the next Supreme Court Justice to play social engineer? And why should we – as a self-governing people – have to put up with it?
Anthony Kennedy wrote the majority opinion in the Obergefell case in which he declared same-sex marriage a fundamental right under the Due Process clause of the 14th Amendment, and state laws against same-sex marriage a violation of Equal Protection, also under the 14th Amendment. This was social engineering, pure and simple. He had a vision of the perfect society and declared it from the top down, instead of waiting for genuine organic social change from the bottom up. Obergefell is not the only example of his social engineering. Remember his theory of ‘unconscious bias’, which has been debunked? According to Anthony Kennedy, we must all be prevented from exhibiting prejudices we don’t even know we have. Kennedy used that theory in a 2015 case to allow housing discrimination claims based on population statistics, without any showing of discriminatory intent, thus opening the door to requiring subsidized housing in his ideal locations. More top-down, cram-down social engineering from the former Justice Anthony Kennedy. How did we get to this place, where Supreme Court Justices come to think of themselves as ‘engineers of human souls’, as Stalin put it, enlightened beings whose job it is to ram their vision of a perfect society down our throats? The answer is there’s a hole in the Constitution. The text of the U.S. Constitution is silent on the question of who gets to decide constitutional questions, short of constitutional amendment. Our system was dramatically changed when the Supreme Court arrogated to itself the power to declare statutes unconstitutional in Marbury v. Madison in 1803. This is euphemistically called ‘judicial review’. It doesn’t make any sense to me that nine unelected judges – or five who make up a majority of the Supreme Court – or a single swing Justice like Anthony Kennedy – get the final say on constitutional questions in a constitutional Republic where the people are supposed to be sovereign. Why should nine unelected masterminds get to decide what are fundamental rights for the entire country, and what are not? This is not the Rule of Law; it’s the rule of the subjective opinion of the tiniest of elites. I propose a constitutional amendment to allow a super-majority of state legislatures to overrule decisions of the Supreme Court on constitutional questions. Why state legislatures? Because of all the institutions we have, state legislatures seem to me to be the closest to the people. They are the best expression of popular sovereignty that our Republic has. The idea for this amendment is not original with me. Mark Levin proposed it in his book The Liberty Amendments in 2013 [p. 211]. Some will argue that judicial review is a good thing and point to the fact that Alexander Hamilton wrote in favor of it in the Federalist Papers, No. 78. However, Hamilton predicted a judiciary that would remain weak, calling it the “least dangerous” branch. Hamilton wrote that the judicial branch is not in control of the military or the purse strings. It has no real power to enforce its judgments, and thus could never become a major threat to the liberty of the people. Courts would never become arbitrary because they would be bound by rules and precedents. Well, things didn’t work out that way, did they? Since Marbury, the Supreme Court has uttered its pronouncements and, with few exceptions, the rest of us fall in line. Now the Court is making stuff up, like fundamental rights out of thin air, regardless of precedent. This was all foreseen by the Anti-Federalist Brutus who wrote that, with unchecked judicial review, judges would substitute their will for the plain text of the Constitution:
It’s time We the People reclaim our sovereignty. This year, I begin exploring the fine points of what I call the ‘popular sovereignty amendment’ and what it would take to put the idea before the American people. Your comments and suggestions are welcome. Let’s reinvigorate the amendment process and have a full discussion of who should be running the show. 1A: Jack Phillips Masterpiece Cakeshop case against Colorado rights commission in transgender dispute can proceed, federal trial court says http://www.adfmedia.org/News/PRDetail/10622 14A Equal Protection: D.C. Circuit dissolves preliminary injunction against Trump admin’s partial ban on transgender military service, but ban remains blocked by other courts https://assets.documentcloud.org/documents/5674600/1-4-19-DC-Circuit-Jane-Doe-Judgment.pdf 5A Fundamental Rights: 9th Circuit grants Trump administration interlocutory appeal in Climate Kids case; trial delayed https://dailycaller.com/2019/01/02/trump-global-warming-youth-lawsuit/ 5A Due Process: illegal aliens with final deportation orders have the right to advance notice of actual deportation, federal judge says https://www.conservativereview.com/news/judge-creates-a-right-for-deportable-aliens-to-be-tipped-off/ 1A: PragerU files new suit against Google/YouTube, pursuing state constitutional and other claims in state court while federal claims on appeal https://www.dailysignal.com/2019/01/09/prageru-brings-new-suit-against-google-in-california-state-court/?utm_source=TDS_Email&utm_medium=email&utm_campaign=CapitolBell%22&mkt_tok=eyJpIjoiWVRNMk1qRTJOVGRpT0RobSIsInQiOiJjdTlIY28wTGdhR3RoYzVQXC9iXC9adGlTUk5JUm9kQm5NSFcyWlIzS2VFWEowb2o2UUcxTWJyWFZIXC9HWnV2VE5naWR1MVJicCtmZVVrWjNQZE52OGRNT1JrbEgzXC82Z1VmVFJxak5UMGpnZE1HSjFlNTZtRnhzUGlGRURJRzM1ME4ifQ%3D%3D 1A etc.: 9th Cir. upholds Arizona's requirement (challenged by DNC) that in-person voters cast their ballots in their assigned precincts http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/12/18-15845.pdf 1A: school board’s practice of allowing an invocation to be offered at its meetings violates the Establishment Clause, 9th Circuit says. Senior judge: “What nonsense!” http://cdn.ca9.uscourts.gov/datastore/opinions/2018/12/26/16-55425.pdf 1A: BuzzFeed’s publication of Steele dossier protected by ‘fair report’ privilege, federal judge rules https://slate.com/news-and-politics/2018/12/federal-judge-buzzfeed-steele-dossier-gubarev-publish-first-amendment-fair-report-privilege.html 4A: Jerome Corsi’s lawsuit against Robert Mueller for, among other things, unconstitutional surveillance can proceed, federal judge rules https://www.thegatewaypundit.com/2019/01/corsi-case-to-proceed-judge-orders-jerome-corsis-case-against-robert-mueller-to-be-reassigned-to-another-court/ 14A Equal Protection: Supreme Court takes Maryland and North Carolina partisan gerrymandering cases https://thehill.com/regulation/court-battles/423932-supreme-court-to-take-up-gerrymandering-cases House Dem introduces bill to kill the Electoral College https://www.breitbart.com/politics/2019/01/04/nolte-tyrannical-democrats-introduce-bill-to-kill-electoral-college/?utm_source=newsletter&utm_medium=email&utm_term=daily&utm_content=links&utm_campaign=20190104 Justice Department goes after bump stocks; Gun Owners of America to sue (Constitution news round-up)12/19/2018
2A: New Justice Department rule says turn in your bump stocks or face felony prosecution; Gun Owners of America to sue
https://freebeacon.com/issues/trump-doj-announces-bump-stock-ban-confiscation/?utm_source=Freedom+Mail&utm_campaign=e66466283e-EMAIL_CAMPAIGN_2018_12_19_12_05_COPY_136&utm_medium=email&utm_term=0_b5e6e0e9ea-e66466283e-45628225 Limited Government: Jerome Corsi files suit against Mueller investigation for leaks and illegal surveillance; constitutional violations asserted https://www.thegatewaypundit.com/2018/12/jerome-corsi-sues-robert-mueller-over-grand-jury-leaks-illegal-surveillance-seeks-350-million-in-damages/ 1A: James O’Keefe wins case - “secretly recording government officials is protected by the First Amendment” https://www.thegatewaypundit.com/2018/12/james-okeefe-and-project-veritas-make-first-amendment-history-secret-recordings-of-massachusetts-public-officials-deemed-constitutional/ 1A: Satanic statue goes up alongside nativity scene in Illinois state capital building https://www.independent.co.uk/news/world/americas/temple-satan-statue-satanic-illinois-capitol-building-festivus-christmas-springfield-a8669001.html + Commentary http://www.liberato.us/constitution-minute.html 1A: High-profile law professor starts video series explaining free speech law; first one takes up free speech in schools http://reason.com/volokh/2018/12/13/free-speech-rules-my-new-youtube-video-s Free Expression: UN pact would criminalize anti-migration speech, critics say https://www.lifezette.com/2018/12/criticism-of-migration-could-become-a-criminal-offense-under-u-n-s-global-pact/?fbclid=IwAR0qoqFZMHVAxi3Q7vlWR139Sq52o8RLP7phtdJ1ODsHtIS0G3rkQF5NKh4 2A: first, they came for the guns and now Venezuelans regret giving theirs up https://www.foxnews.com/world/venezuelans-regret-gun-prohibition-we-could-have-defended-ourselves Eminent Domain: Trump administration sets deadline for white farmers to give up land without compensation (oops, forgot my glasses) https://www.thegatewaypundit.com/2018/12/your-time-is-up-white-people-south-african-government-sets-date-for-white-farmers-to-give-up-land-without-compensation/ 14A Due Process: USC student’s expulsion for rape set aside; denied fair hearing because he and adjudicator could not assess witness credibility http://reason.com/volokh/2018/12/13/court-sets-aside-usc-students-expulsion Emoluments: 30 subpoenas issued in Trump emoluments case; court out of control on wild theory? http://www.marklevinshow.com/2018/12/05/december-5-2018/ Administrative State: Supreme Court takes up significant judicial deference cases https://fedsoc.org/commentary/blog-posts/supreme-court-grants-cert-petition-challenging-required-judicial-deference + https://www.nationalreview.com/2018/12/the-boring-supreme-court-case-that-could-help-make-america-great-again/ Charles Krauthammer book: the miracle of the U.S. Constitution and our enduring culture of constitutionalism http://theitem.com/stories/the-enduring-miracle-of-the-american-constitution,318996 Bill de Blasio’s tyrannical impulses show why the Founders were wise to disperse power in U.S. Constitution https://thehill.com/opinion/campaign/420013-bill-de-blasio-shows-why-socialistic-impulses-are-not-made-for-america 9th Circuit’s mid-winter meeting features transgender activists, panel on ‘triggering’ speech, and left-wing academics http://reason.com/volokh/2018/12/12/the-ninth-circuits-activist-midwinter-me Kudos to liberal Sam Harris for closing Patreon account over platform’s expulsion of conservatives https://www.thegatewaypundit.com/2018/12/free-speech-hero-liberal-sam-harris-deletes-his-top-13-patreon-account-over-political-bias-against-conservatives/ Last year at this time, I talked to you about the constitutionality of Christian nativity scenes under the Establishment Clause of the First Amendment of the United States Constitution. I told you how the rule evolved over time to allow nativity displays in public places, but only if they are deemed to serve secular purposes such as celebrating a holiday or depicting the origins of that holiday. The displays that have passed constitutional muster in recent years have all included non-Christian symbols, like plastic reindeer, leading some to derisively call the current state of the law on this subject the ‘reindeer rule’. I showed you how, through the wizardry of Supreme Court jurisprudence, the Establishment Clause – which, on its face, has nothing to do with passive religious displays – is now the ‘endorsement clause’ – Congress shall make no law constituting an endorsement of religion, or appearing to favor one religion over another. Originally, the Establishment Clause was addressed to situations, like in my own state of Virginia, where the government in colonial times had ordered everyone to attend a particular church and had even paid the ministers. That’s the establishment of a state religion, no question about it.
But now that Pandora’s Box has been opened – can I say that without endorsing Greek mythology? - the issue will probably never go away. Three current situations show how the battle continues. In the first, a 4-foot Satanic statue is now on display in the Illinois state capital building alongside a nativity scene. The Satanic Temple of Chicago – which says it’s merely a benevolent association – applied to display the statue and the Illinois state government decided the group has the same rights as any other religious organization, so its display could not be censored. The Satanic Temple says it does not actually worship Satan; it’s just a group of atheists, humanists, and free speech activists. So how is that a religion? The Supreme Court has never really defined ‘religion’ beyond saying it must be a set of sincerely held beliefs, no Deity required. [Chemerinsky, Constitutional Law: Principles and Policies (4th ed. at 1231-34]. Atheism and humanism certainly qualify under that loose definition. The second situation involves a 4-story tall World War One memorial in the shape of a cross in a Maryland suburb of Washington, D.C. The Fourth Circuit Court of Appeals emphasized the Christian origins of the memorial in ruling that it violates the Establishment Clause and must be removed. [American Humanist Association v. Maryland-National Capital Park & Planning Commission] That case is now in the Supreme Court. The third situation involves a cross that has been in a Pensacola city park for 75 years without controversy, up until now. A three-judge panel of the 11th Circuit has ruled that the cross must come down. The city wants the Supreme Court to take the case, arguing that long public acceptance of the cross is enough to make it kosher under previous Supreme Court precedents and, further, that the passage of time before any legal challenge was mounted indicates that just about nobody considers the cross to be an ‘establishment’ of religion. As of this writing, the Supreme Court has not indicated whether it will take the case. From time to time on these webinars, I have criticized the Supreme Court for deviating from the Founders’ design. When the Supreme Court stopped requiring active measures imposing a state religion to make out violations of the Establishment Clause, and veered off into deciding whether passive religious displays endorse religion, it opened the door to an endless stream of cases where it would have to decide on fine shadings of fact what is and what is not an ‘endorsement’. How many reindeer are enough? None of this would be necessary if the Supreme Court had stuck to the original meaning of the word ‘establishment’ in the first place. But that’s just me. Like I said, this issue isn’t going away. See you same time, a year from now. Conservative groups win smashing free speech victory over UCal-Berkeley (Constitution news round-up)12/5/2018
1A: Conservative groups win smashing free speech victory over UCal-Berkeley for hamstringing speakers (including Ben Shapiro) – school to pay $70,000, rescind unconstitutional and discriminatory policies
https://www.washingtonexaminer.com/red-alert-politics/uc-berkeley-settles-landmark-free-speech-lawsuit-will-pay-70-000-to-conservative-group Free Expression: Gonzaga U – What would Jesus do? Why, ban Ben Shapiro, of course! Catholic school caves to heckler’s veto, refuses to let Shapiro speak because people might be upset. https://freebeacon.com/politics/gonzaga-university-blocks-ben-shapiro-event-protesters-might-use-hate-speech/?utm_source=Freedom+Mail&utm_campaign=90c6b95ec0-EMAIL_CAMPAIGN_2018_03_19_COPY_01&utm_medium=email&utm_term=0_b5e6e0e9ea-90c6b95ec0-45628225 1A: Supreme Court extends Janus principles to bar dues; attorneys can’t be compelled to pay for bar associations’ political speech https://freebeacon.com/issues/scotus-rules-favor-free-speech-lawyer-lawsuit/?utm_source=Freedom+Mail&utm_campaign=11d13d87dc-EMAIL_CAMPAIGN_2018_12_03_10_17_COPY_02&utm_medium=email&utm_term=0_b5e6e0e9ea-11d13d87dc-45628225 1A: Law of compelled speech is complicated and unsettled – wedding cakes, union dues, abortion info at pregnancy centers, transgender pronouns (panel discussion) https://www.youtube.com/watch?v=eAD6prcG60Y 1A: NFL season ticket holder – I have a right as a member of a captive audience to be protected from unwanted ‘take a knee’ protests. Louisiana appeals court – not a valid cause of action http://reason.com/volokh/2018/12/03/court-throws-out-season-ticket-holders-l Free Expression: Google employees discussed manipulating search results, burying conservative media to swing 2020 elections. Please All-Knowing Google, teach me critical thinking. What a bunch of airheads! https://dailycaller.com/2018/11/29/google-censorship-conservative-media/ 2A: New York bill would require gun purchasers to submit their social media and online search history https://www.foxnews.com/us/gun-purchasers-may-need-to-submit-social-media-history-under-proposed-new-york-legislation 2A: Maryland ‘red flag’ law draws 114 gun removal requests in its first month https://wtop.com/maryland/2018/11/maryland-law-draws-114-gun-removal-requests-in-its-1st-month/ South Africa gun registration law predictably cascades into gun confiscation law. Gun grabbers want ALL your freedom. Don’t give them ANY of it. https://www.alloutdoor.com/2018/07/24/south-africa-lesson-registering-guns/ 4A: Officer – I knew it was wrong to place a GPS tracker on defendant’s car without a warrant, but I did it anyway. 4th Circuit – flagrant violation of the 4th Amendment justifying exclusion of drug evidence http://reason.com/volokh/2018/12/04/warrantless-placing-of-a-gps-device-and 4A: Wisconsin Supreme Court upholds use of GPS tracker on suspect’s car after warrant expired https://www.jsonline.com/story/news/politics/2018/11/19/wisconsin-supreme-court-upholds-police-use-gps-tracker/2024023002/ 14A Due Process: ACLU says ‘Marsy’ victims’ rights laws offend the presumption of innocence and the right of the accused to secure exculpatory evidence https://www.aclu.org/blog/criminal-law-reform/major-threat-due-process-marsys-law-gains-ground-nationwide 14A Due Process: Rhode Island students sue state for denying right to be taught civics (how to become capable jurors, voters, and citizens) https://www.cnn.com/2018/12/01/us/civics-class-action-lawsuit-rhode-island/index.html 5A: Supreme Court hears arguments in case testing whether separate state and federal prosecutions for same offense constitutes double jeopardy http://reason.com/volokh/2018/12/05/dual-sovereign-doctrine-under-attack-in 5A Eminent Domain: Texas appeals court rules deliberate hurricane-related flooding of certain properties to prevent damage to other properties can be a taking requiring compensation http://reason.com/volokh/2018/12/04/texas-court-rules-deliberate-flooding-of 6A: New York high court rules possible deportation is a serious consequence triggering right to a jury trial https://www.washingtonpost.com/politics/2018/11/30/deportation-may-be-worse-than-jail-court-just-ruled-why-thats-big-deal/?utm_term=.38f96578a213 8A: Supreme Court appears ready to rule that excessive fines clause applies to the states; this would rein in civil asset forfeiture racket https://www.theusconstitution.org/news/high-court-set-to-apply-constitutions-ban-on-excessive-fines-to-states-report/ 10A: Supreme Court could pronounce in excessive fines case that all of the Bill of Rights are ‘incorporated’ and thus apply to the states; this would be disruptive (e.g., grand juries) and damage already weak federalism https://news.bloomberglaw.com/us-law-week/broader-bill-of-rights-would-dramatically-impact-state-courts Political Bias in Public Accommodations: Republican Club sues Pasadena for canceling event in rented hall featuring pro-marriage speaker https://www.claremont.org/page/ccj-files-lawsuit-challenging-political-and-religious-discrimination/ Economic Freedom: after Wisconsin law banning sale of home-baked goods, home bakers are better able to pay their bills, buy lessons for their children, and get health insurance. https://ij.org/report/ready-to-roll/ Patents: elderly inventor sues Patent Office for bad faith discrimination, blocking his applications, violating his constitutional property rights https://freebeacon.com/issues/patently-offensive/?utm_source=Freedom+Mail&utm_campaign=94987192e3-EMAIL_CAMPAIGN_2018_11_30_08_04_COPY_01&utm_medium=email&utm_term=0_b5e6e0e9ea-94987192e3-45628225 Shame and Kudos! Stanford administrator encouraged frat house to take down American flag as offensive to others. Frat responds by hoisting bigger flag. Mr. Administrator, show me your alternative flag. I’m waiting. https://stanfordreview.org/does-the-american-flag-offend-you-stanford-thinks-it-might/?fbclid=IwAR2nZT9784lMrueJkkoYUS1bnkjmRWrUy7xefgrB6hquEIYbfu9BlFF3rHE A federal judge has thrown out the federal female genital mutilation statute and dismissed the key charges in the Detroit FGM case.
I first told you about this case last year. At that time, the Muslims charged in the case were raising a religious liberty defense, arguing that they had acted within their constitutional rights on the facts presented. But the focus changed to the Commerce Clause and the judge ruled that FGM is a local criminal activity within the purview of local authorities and beyond the reach of Congress to regulate. The Commerce Clause is in Article 1, Section 8 of the U.S. Constitution. It’s what gives Congress the power to regulate commerce among the several states. You may recall that Chief Justice John Roberts found that Obamacare violated the Commerce Clause before doing judicial backflips and upheld it as a tax. The Detroit case was the first prosecution under the 22 year-old federal FGM statute. Prosecutors claimed that as many as 100 girls from Michigan, Illinois, and Minnesota had been cut. The defendants argued that FGM has nothing to do with commerce, that “mutilation is not an economic activity.” The government argued that children were transported across state lines and that the procedures were arranged with the use of cellphones, and involved medical tools and drugs sold in interstate commerce. They further argued that a healthcare service is a commercial service. The judge knocked down the FGM statute as unconstitutional and dismissed most of the charges against the two Michigan doctors. In his opinion, the judge wrote that FGM may be a “despicable” practice, but it’s up to the states to regulate it. He recounted a long history of cases saying the federal government can’t touch purely local crimes. He said there was nothing commercial about FGM. It’s just an assault and, like rape, has no effect on interstate commerce. He relied on a precedent knocking down part of the Violence Against Women Act on the grounds that sexual assault has no effect on interstate commerce. He pointed out that, in the Detroit case, there was “no suggestion the procedure was done for money.” If there was evidence in the record that money changed hands, it was not reported in the stories I read. The U.S. Attorney’s office hasn’t decided yet whether or not to appeal. Serious conspiracy and obstruction charges remain and are set for trial in August 2019, although there is now a motion to dismiss a conspiracy charge. There is a state FGM statute in Michigan, but the defendants in the Detroit case can’t be charged under it because it was passed after the federal case arose. You can’t charge people retroactively; that would be an ex post facto prosecution and unconstitutional under Due Process and Article 1, Section 9 of the U.S. Constitution. You might recall a Commerce Clause case from the New Deal era, Wickard v. Filburn. The wheat in that case was consumed locally on the farm where it was grown and never crossed state lines. But the price stabilization statute was upheld because the farmer’s actions were deemed to have an effect on wheat prices elsewhere, so there was an effect on interstate commerce. We have, in the Detroit case, people who did cross state lines, but the statute was knocked down. If this doesn’t make any sense to you, welcome to the wacky world of constitutional jurisprudence. There were other problems with the judge’s opinion. There is a distinction in the law between a facial challenge to a statute and a challenge to the statute as it is applied in a particular case. A successful facial challenge means there is no set of facts imaginable under which a law could be constitutional. A successful ‘as applied’ challenge means that the law is unconstitutional on the facts presented, but there might be other facts where application of the law would be constitutional. In the Detroit case, the judge said that FGM is not an economic activity or healthcare service. But what about potential cases in the 23 states that don’t have their own FGM statute making such cutting illegal and there is evidence in the record that money changed hands? Under those facts, there would be no local crime and the commercial nature of people crossing state lines to consume a healthcare service would be undeniable. Voilà! – the effect on interstate commerce the judge said was lacking in the Detroit case justifying Congressional regulation and the federal statute. The judge did not limit his ruling to the way the statute was applied. Instead, this judge went out of his way to knock down the entire federal statute as unconstitutional on its face when there are circumstances under which it could be constitutionally applied under the judge’s own reasoning. The judge’s opinion does not hang together, logically speaking. An appeal could go either way but, for now, the ruling only applies in the District where the judge sits. He did not issue a nationwide injunction, as is the fashion these days. It will probably be a long time before the issue reaches the Supreme Court and is decided there. The Supreme Court often waits for a conflict between Circuits or other courts of appeal. But there is a code of silence regarding FGM in Muslim communities, so there are few potential complainants and, consequently, few prosecutions will be brought around the country, if any are brought at all. These would have to work their way up through the appeals process and produce divergent results before the Supreme Court would get interested, if the common pattern holds. Be that as it may, pressure will have to be brought on state and federal prosecutors to do their jobs and bring cases, or one tentacle of sharia law will have effectively extended its reach over America. I discussed the Detroit case in greater detail on Sharia Crime Stoppers radio and you can find the archive here. Commerce Clause: Muslim female genital mutilation is local criminal activity beyond the reach of Congress to regulate, judge says in expansive ruling knocking down federal FGM statute
https://www.freep.com/story/news/local/michigan/detroit/2018/11/20/female-genital-mutilation-michigan/1991712002/ Appointments Clause: Supreme Court is asked to rule whether acting Attorney General appointment is lawful https://www.reuters.com/article/us-usa-trump-whitaker/trumps-attorney-general-appointment-challenged-at-supreme-court-idUSKCN1NL2KV 5A Due Process: federal judge issues temporary order blocking implementation of Trump asylum rules steering asylum claimants to ports of entry https://theconservativetreehouse.com/2018/11/20/san-francisco-judge-blocks-asylum-ban-for-aliens-who-cross-border-illegally/ 5A Fundamental Rights: After Supreme Court rebuke, trial judge puts Climate Kid’s lawsuit on hold to allow government to appeal to 9th Circuit http://reason.com/volokh/2018/11/26/is-kids-climate-case-coming-to-an-end Discrimination: Trump administration asks Supreme Court for expedited review of its new policy excluding most transgender people from military service; policy currently blocked by 3 lower court orders https://constitutioncenter.org/blog/transgender-in-the-military-dispute-reaches-supreme-court 5A Due Process: in America, we have the right to cross-examine witnesses, confront our accusers in court, and the presumption of innocence. New campus sexual assault rules should not be controversial. https://www.dailywire.com/news/38453/insane-aclu-now-opposes-accused-students-having-so-ben-shapiro 14A Fundamental Rights: 19 states ask Supreme Court to overturn appeals court, uphold Indiana’s ban on Down Syndrome abortion https://townhall.com/tipsheet/laurettabrown/2018/11/20/19-states-ask-the-supreme-court-to-uphold-indianas-down-syndrome-abortion-ban-n2536269 1A: Baby parts sting video maker asks Supreme Court to terminate Planned Parenthood’s intimidation lawsuit designed to stifle First Amendment rights (SLAPP suit) https://www.lifenews.com/2018/11/28/planned-parenthood-desperately-tries-to-stop-more-videos-exposing-it-selling-aborted-baby-parts/ 10A Commandeering: Oregon sues Trump administration for withholding federal grants for state’s refusal to cooperate on immigration matters https://www.thegatewaypundit.com/2018/11/oregon-ag-sues-trump-over-sanctuary-state-funding-oregons-18th-lawsuit-costing-over-100000/ Art 1, Sec 2: Defeated Congressman challenges Maine’s ranked-choice voting law https://www.pressherald.com/2018/11/13/opinion-poliquins-suit-unlikely-to-prevail-on-constitutional-grounds/ 2A: NRA sues Washington State after gun control referendum passes banning sale of semi-autos under age 21, requiring handgun purchasers to allow searches of their medical records, etc. https://freebeacon.com/issues/nra-saf-file-suit-block-new-washington-gun-control-law/?utm_source=Freedom+Mail&utm_campaign=b2035b2b5d-EMAIL_CAMPAIGN_2018_11_19_02_14_COPY_123&utm_medium=email&utm_term=0_b5e6e0e9ea-b2035b2b5d-45628225 2A: courts uphold Colorado’s large-capacity magazine ban (again) https://www.skyhinews.com/news/in-setback-to-gun-advocates-colorados-large-capacity-magazine-ban-survived-yet-another-court-challenge/ State Constitution: Kentucky Supreme Court upholds state’s right-to-work law https://freebeacon.com/issues/right-work-wins-kentucky/?utm_source=Freedom+Mail&utm_campaign=b2035b2b5d-EMAIL_CAMPAIGN_2018_11_19_02_14_COPY_123&utm_medium=email&utm_term=0_b5e6e0e9ea-b2035b2b5d-45628225 Shame! St. Louis County’s Parkway School District fires teacher for thanking students for standing and reciting the Pledge of Allegiance https://www.thegatewaypundit.com/2018/11/st-louis-teacher-fired-after-thanking-kids-for-standing-during-pledge-of-allegiance/ Shame on Brooklyn federal district court judge LaShann DeArcy! She demoralized new Americans in citizenship ceremony by telling them to ‘take a knee’. They freely chose America. You couldn’t be any more disrespectful of their choice. https://spectator.org/judge-tells-new-citizens-to-take-a-knee/ At first glance, it seems outlandish that a federal judge would order President Trump to return Jim Acosta’s press pass. Surely, there can’t be a constitutional right to attend White House press conferences, can there? But the judge’s order becomes much more understandable when you dig into it a little.
No opinion, order, or transcript is publicly available at this time [1:18-cv-02610-TJK CABLE NEWS NETWORK, INC. et al v. TRUMP et al, U.S. District Court for the District of Columbia], so we start, as always, with the text of the U.S. Constitution. The First Amendment protects, among other things, freedom of the press. The Fifth Amendment provides that no one shall be deprived of life, liberty, or property without due process of law. The heart of the matter is that Jim Acosta of CNN, once granted a White House press pass, has a liberty interest in that pass that is protected by due process. He cannot be deprived of his pass without first being afforded due process of law. This is the basis of the judge’s order. Due process, among other things, means notice and an opportunity to be heard. The White House pulled Jim Acosta’s press pass without giving him notice or an opportunity to be heard before the revocation. The judge recited these facts, as well as the fact that the government’s lawyer could not say who actually ordered the revocation, making the process indeterminable. The judge relied on a 1977 federal appeals court decision involving Robert Sherrill of The Nation magazine. Sherrill was denied access to the White House, the Secret Service said, because he had a couple of assaults in his background – one while on the job. He had punched the Florida Governor’s press secretary while on a campaign train. What a rude, terrible person but, still, the court in that case upheld his First and Fifth Amendment rights. The court concluded “that notice, opportunity to rebut, and a written decision are required because the denial of a pass potentially infringes upon First Amendment guarantees.” Judge Timothy Kelly, a Trump appointee, said, while he may not agree with the 1977 precedent, he felt duty-bound to follow it in Jim Acosta’s case. A couple of other factors weighed in the judge’s decision. Judge Kelly found that CNN would likely prevail on the merits. He also expressed his skepticism about White House claims that it had pulled the pass due to Acosta’s bad behavior at a recent press conference. CNN argued that the pass was pulled, not because of Acosta’s behavior, but because of his prior reporting that was unfavorable to the President. This raises the possibility that the White House was actually acting against Acosta because of the content of his viewpoint, a big free speech no-no. The judge also rejected the administration’s argument that CNN has plenty of other reporters covering the White House. As the judge put it, "That CNN may send another journalist to the White House does not make the harm to Mr. Acosta any less irreparable." After the judge’s ruling, the White House indicated it would draw up some rules regarding decorum at White House press briefings. The judge’s ruling was on CNN’s application for a temporary restraining order and the White House has not indicated whether it wants to continue with the litigation. The judge left open the possibility that the White House could still revoke Jim Acosta’s pass if it first affords him due process. The judge also seemed to suggest that President Trump would be within his rights never to call on Jim Acosta again. For the life of me, I can’t understand why the White House continues to hold press conferences for the hostile fake news media. Why not just send everybody press releases and maybe answer some questions by email? If due process vests because the government creates a forum, then why not do away with the forum? Separation of Powers: 9th Circuit upholds national injunction against Trump administration effort to end DACA program; Supreme Court expected to take up DACA issue
https://constitutioncenter.org/blog/ninth-circuit-rules-against-trump-administration-on-daca 5A Due Process: Trump administration suspends asylum claims not made at ports of entry https://www.whitehouse.gov/presidential-actions/presidential-proclamation-addressing-mass-migration-southern-border-united-states/ Appointments Clause: Supreme Court said in 1898 Eaton case that temporary appointment does not transform individual into a principal officer requiring Congressional approval (Acting AG controversy) http://reason.com/volokh/2018/11/10/who-is-lawfully-the-attorney-general-rig 1A Free Press: Jim Acosta and CNN assert constitutional right to a White House press pass in suit against Trump; Acosta can still apply for daily pass https://www.thegatewaypundit.com/2018/11/jim-acosta-and-cnn-sue-white-house-for-banning-abusive-jackass-from-from-constitutional-right-to-harass-president/ Voting Rights: federal judges throw out Maryland electoral map as political gerrymandering hurting GOP; sets deadline for new map or creation of commission https://www.washingtonpost.com/local/public-safety/federal-judges-throw-out-marylands-congressional-voting-map/2018/11/07/91a06834-e2be-11e8-b759-3d88a5ce9e19_story.html?utm_term=.a233fad646c4 Free Expression: European Parliament moves to ban ‘hate’ speech across entire EU, calls for special police to prosecute and jail critics of radical Islam, gay agenda, open borders, transgenderism, etc. https://www.thenewamerican.com/world-news/europe/item/30600-eu-resolution-demands-critics-of-lgbt-and-islam-be-prosecuted 1A: federal judge rules Wisconsin high school’s ban on pro-gun T-shirts likely unconstitutional http://reason.com/volokh/2018/11/12/high-school-has-right-to-wear-pro-gun-t 2A: 1st Circuit aligns with California on eviscerating right to carry guns outside the home http://patriotgunnews.com/2018/11/06/first-circuit-court-of-appeals-rule-no-right-to-bear-arms-outside-the-home/ 2A: lawsuit challenges New Jersey’s ban on distribution of 3-D gun printing instructions http://reason.com/volokh/2018/11/09/lawsuit-challenging-new-jersey-ban-on-di 2A: “98% of the mass public shootings in the United States since 1950 have occurred in places where guns are banned” https://crimeresearch.org/2018/11/massacre-at-borderline-bar-grill-in-thousand-oaks-california-was-in-another-gun-free-zone-12-murdered-18-injured/ 2A: Washington State voters approve age restrictions, other curbs on gun purchases https://www.dailysignal.com/2018/11/07/washington-voters-ok-sweeping-gun-control-measure-raising-age-for-some-purchases/?utm_source=TDS_Email&utm_medium=email&utm_campaign=CapitolBell%22&mkt_tok=eyJpIjoiTVdVMk9URm1ZMlZsT0RaaiIsInQiOiJ0K0lqODdYVVlhUDJ6YnJkaU0zR2phUXFVNitZU2R3OGNKTkFnajdHWFh5Q0FxV3hrRmtaTDVpTGYzOW5sWlUxa1wvOTc4UkVkeWM2azN1c2d2RUllSjhHVTVVZ2R4MjI1XC9rZ2VkVEJQZEZicm5NUjk0MWhjTFVvMk5aZ3hacVFcLyJ9 2A: fantastical bogus statistic going around after Thousand Oaks shooting – ‘307 mass shootings this year alone.’ Sure. Debunked by left-wing Washington Post https://www.newsbusters.org/blogs/nb/nicholas-fondacaro/2018/11/08/here-we-go-again-cbs-nbc-push-another-bogus-mass-shooting 8A: Supreme Court is asked to rule on Arizona provision categorically denying bail to persons accused of violent sexual offenses http://reason.com/volokh/2018/11/13/are-categorical-denials-of-bail-constitu State Constitutions: New Hampshire (‘Live Free or Die’ state) amends constitution to protect “right to live free from governmental intrusion in private or personal information" – whatever that means http://reason.com/volokh/2018/11/12/nh-constitution-now-protects-right-to-li |
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