Last night, I watched Invalidated, Tea Party Patriots’ new documentary about the patent system.  The documentary does a good job laying out how the Patent Trial and Appeal Board – PTAB, as it’s known - is harming U.S. inventors and allowing American ingenuity to slip away to other countries.  Ironically, communist China might end up with a stronger patent protection system than the United States.

Article I, Section 8 of the U.S. Constitution guarantees patent protection, giving inventors exclusive rights to their discoveries.  The documentary emphasizes that investors always ask inventors whether they have a patent and will not put money behind an invention unless they do.

Enter the America Invents Act of 2011, which established PTAB.  PTAB is an administrative tribunal that has the power to invalidate patents that have already been granted, even if they have been upheld by courts and juries.  As shown in the documentary, one wing of the U.S. Patent and Trademark Office awards patents after thorough examination while another wing of the USPTO – PTAB – is very much inclined to invalidate them.  This works to the advantage of shady operators and big companies who use PTAB to steal inventors’ ideas and rob them of any hopes of profiting from their own inventions.

Arguments against the constitutionality of PTAB were heard in the Supreme Court this year.  Jenny Beth Martin discussed the Oil States case in an editorial late last year.  Unfortunately, the Court went on in April 2018 to reject certain constitutional challenges to PTAB.  Relying on previous Supreme Court precedent, Justice Clarence Thomas writing for the majority reiterated that the Supreme Court considers patents a mere “public franchise” like a concession to operate a city bike-share program – thus relegating patents to second-class status instead of recognizing them as full-fledged property rights.  As second-class rights, patents can be awarded and invalidated wherever Congress locates that power, and courts need not necessarily be involved, thus shooting down the separation of powers argument.

The Supreme Court said that prior cases calling patents ‘property rights’ are “best read as describing the statutory scheme that existed at that time.” Also, the Framers had to have been aware that an administrative Privy Council had the power to cancel patents in England in the 18th Century, but did not expressly exclude such administrative action in the Patent Clause in the U.S. Constitution.  The Court did say that patents remain property rights for purposes of the Due Process and Takings clauses.  Gee, why am I reminded of the Obamacare case where the Court said it was a tax but not a tax?  Such judicial backflips suggest that the Court just wanted to reach a certain result and nothing was going to stand in its way. 

The Court finished off its opinion by giving short shrift to the 7th Amendment challenge under the same reasoning.  Because patents are second-class rights that can be awarded and invalidated administratively, there is no right to a jury trial even though the 7th Amendment explicitly states that the right to take your case to a jury is guaranteed in lawsuits where the amount in controversy exceeds $20.  Losing a patent can cost an inventor millions, if not billions, of dollars. 

So here we have the Supreme Court treating patent rights like taxi medallions, which a taxi commission can grant or take away on a whim because they’re not really property rights.  That just seems wrong to me, since patent protection was explicitly written into the Constitution and taxi medallions are not.  What part of “exclusive Right” in the Patent Clause does the Supreme Court not understand?

It seems wrong to Justice Neil Gorsuch, as well.  He noted in his dissenting opinion in the Oil States case that the practice of administratively canceling patents in the Privacy Council had disappeared by 1746, decades before the U.S. Constitution was written.  Patents may have started as “public franchises” in English law way back when, but were accorded much more respect by the time of our Founding than were ordinary “public franchises” – like government-granted monopolies to operate toll bridges.  Patent holders at that time, for example, had the right to go before an independent court.   After Oil States, they still do but the judgments they receive in court can be wiped out later by the administrative tribunal PTAB.

That’s just bizarre, which suggests to me another constitutional challenge against PTAB which has yet to be made – if patents are still property rights for due process purposes as Justice Thomas wrote, how can they be taken away by an administrative agency after a court has already upheld them?  How is that not a denial of due process of law?  It might not be double jeopardy, because it’s not a criminal matter, but it’s every bit as unfair as trying a criminal defendant twice for the same crime.

Folks, we have another administrative monster on our hands, every bit as bad as IPAB under Obamacare – the decisions of which, purportedly, Congress could not reverse – and the CFPB (the Consumer Financial Protection Bureau) which was set up with one person at the helm not subject to removal by the President.  Where does Congress come up with this stuff?

The Supreme Court won’t be persuaded to elevate the status of patent rights any time soon, so the PTAB mess cries out for a legislative fix.  Representative Thomas Massie, Republican of Kentucky, has introduced a bill to repeal PTAB.  Massie and Jenny Beth Martin discussed the bill and other legislative fixes in a joint editorial in July 2018.

I highly recommend Tea Party Patriots’ documentary. It’s obvious something needs to be done about PTAB. Our prosperity and economic freedom depend on it.

Tonight, I have an update for you on the Trump administration’s lawsuit against California’s state sanctuary laws.  This one, so far, is going as observers expected – in other words, not well.  A federal judge on July 5, 2018 refused to grant the Justice Department a preliminary injunction against California’s statute prohibiting state and local law enforcement officials from sharing information about criminal aliens in their custody with federal officials.   The judge also declined to grant a preliminary injunction against the California law allowing state inspections of local and privately run jails, which depends on getting access to federal records about prisoners.  The judge did, however, block parts of a third law, including provisions that tried to ban private employers from cooperating with federal immigration officials on immigration raids and other matters.  So, as observers expected, the strongest part of the Justice Department’s case was upheld, at least for now.  This is all preliminary, not final, and the case goes forward.  The judge was sympathetic to the anti-commandeering argument which prevents the federal government from forcing state and local officials to help enforce federal laws.  The judge said “refusing to help is not the same as impeding” and that standing aside is not the same as standing in the way. 

Family Separation

In May 2018, the Trump administration announced a “zero tolerance” policy under which all adults entering the United States illegally would be subject to criminal prosecution and all minor children would be separated from their parents.  In June, in response to public pressure, the President issued an executive order ending the practice of separating families. But the order did not address the reunification of more than 2,000 children already separated from their parents.  Prior to the executive order, a federal judge in San Diego found that the illegal aliens entering the United States under the circumstances presented have “substantive due process rights to family integrity” under the 5th Amendment to the U.S. Constitution.  After the executive order, the judge issued a preliminary injunction giving the administration up to 30 days to reunite all children affected by the “zero tolerance” policy with their parents. 

The Trump administration had argued unsuccessfully that families separated at the border when the parents claim asylum have no constitutional right to remain together.  But in his first ruling, the judge talked about the “sacred bond between parent and child” and said he found the practice of family separation inhumane. Observers have said there is a due process “right of family integrity” dating from Supreme Court cases in the early 20th Century.

The Flores agreement that has gotten so much publicity lately, among other things, stipulates that children coming across the border illegally accompanied by their parents have to be released within 20 days.  The Trump administration said the Flores agreement is the reason it could not keep families together – the parents are detained indefinitely but the kids are supposed to be placed in 20 days.

Last I heard, the Trump administration is looking for space on military bases to detain families together.  The administration says this would satisfy both the Flores agreement and the San Diego judge’s order.  The judge in San Diego recently said “nothing in his order takes away the government’s discretion to either detain or release parents in immigration custody; keeping families together is the key.”

What’s odd is that the Flores case – which gave rise to the Flores agreement – specifically found there is NO due process right for children of parents detained for deportation hearings to be placed with their parents, close relatives, or legal guardians.  So it’s conceivable that higher courts could reverse the district court judge’s findings, but I personally doubt the government will take the case that far.

Tonight I have two updates for you, on cases I previously discussed on this webinar.

The first concerns the constitutionality of the Consumer Financial Protection Bureau – the CFPB.  A federal judge in New York has found that the CFPB “is unconstitutionally structured because it is an independent agency that exercises substantial executive power and is headed by a single Director.”  An independent agency with a single director is something we have not seen before and the judge ruled this violates separation of powers [p. 103] 

I had previously discussed a separate CFPB case in federal court in the District of Columbia.  The D.C. Circuit Court of appeals upheld the constitutionality of the CFPB in January 2018.  A third case is in the Fifth Circuit Court of Appeals.  In all likelihood, this issue is headed to the Supreme Court for final resolution.

The other case I’ll discuss tonight is Carpenter v. United States, which involves the Fourth Amendment. The Supreme Court just ruled that police must have probable cause and get a warrant before they can obtain cell site location data from a phone company.  Writing for the majority, Chief Justice Roberts stated that people have a legitimate expectation of privacy in their location information because it provides “an intimate window into a person’s life, revealing not only his particular movements, but through them his ‘familial, political, professional, religious, and sexual associations.’” 

Four Justices wrote dissenting opinions.  Of special interest is the one by Justice Gorsuch, champion of the property rights theory of the Fourth Amendment.  He criticized the long-standing expectation of privacy test as an unreliable guide that leads to unpredictable results.  Cell phone records are property, in his view.  He compared cell phone location data to sealed letters put in the mail, property which arguably requires a warrant to search even when entrusted to a third party, the post office.  Gorsuch and his property rights rationale failed to carry the day, however, so ‘legitimate expectation of privacy’ remains the primary theory of Fourth Amendment jurisprudence for now.

It’s been less than a week since the Supreme Court rendered the Masterpiece Cakeshop decision, but it already seems like eons.

Most of the commentary on the case has focused on how narrow the decision is.  The Supreme Court put off the big questions about vendor involvement in same-sex weddings – for example, whether forcing unwilling vendors to provide services to same-sex weddings is compelled speech in violation of the First Amendment.  Instead, to everyone’s surprise, the Court picked up on one aspect of the case before it and limited its ruling in favor of baker Jack Phillips to instances where the vendor can show that the government deliberately targeted religion in applying its nondiscrimination law.  The Court left for another day the question whether the same result should obtain in the ordinary case where the government does not show open hostility to religion. 

What’s generally been overlooked is what the case does do for people of faith and how they can use the Masterpiece decision to their full advantage.  Religious people have been given an argument they didn’t have stated so clearly a week ago – that the government’s action is a thinly veiled attack on religion in a country founded on freedom of religion. 

Before turning to how to use this argument, let’s look at the constitutional basis for the Court’s decision in Masterpiece in more detail. Writing for the majority, Justice Anthony Kennedy concluded that “the Commission’s treatment of Phillips’ case violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint.”  The Court held that, in so doing, the actions of the Colorado Civil Rights Commission violated the Free Exercise Clause of the First Amendment.  That clause prohibits Congress from preventing the free exercise of religion.  It has been applied to the states through the Due Process Clause of the 14th Amendment through what is called the incorporation doctrine. 

Civil rights laws must be applied in a manner that is neutral towards religion, the majority opinion said, but the record here showed that the Commission was neither tolerant nor respectful of Phillips’ religious beliefs. Some of the commissioners stated their view that there is no room for religion in the public sphere and, further that Phillips’ faith was “despicable”.  They compared his ordinary religious views to defending slavery or the Holocaust.

Now, how can religious people use the Masterpiece decision against the radical gay Left and groups like the Freedom from Religion Foundation who are crusading against religion?

If I were the attorney representing religious clients, I would assess whether the case fits squarely into the Masterpiece Cakeshop envelope – that is, whether the facts show that the law under which the opponents are proceeding is a frontal assault on religion or that the people administering the law are hostile to religion.  I would force them to spend time exploring the facts in the case and defending against the proposition they are anti-religious.  I would pin down the government officials in deposition and at trial regarding their attitudes toward religion. Put their hostility to religion, if it exists, on the record. 

If the case doesn’t fit squarely within Masterpiece, I would argue for as broad a reading of Masterpiece as I possibly could.  Suppose you find some facts that indicate hostility to religion on the part of government officials, but those facts aren’t as brazen as in Masterpiece.  Then you can argue in good faith for an extension of Masterpiece, even if your facts don’t rise to the level of what happened to Jack Phillips.

Even if your facts fall short, at the very least you will have discredited your opponents, which Cicero – the all-time master of argumentation – advises you always do at the outset of every argument.  Discrediting your opponents may tip the balance in your case in your favor in some intangible way.

Finally, this is the first time I can recall that that radical gay Leftists have been told there are limits, and they aren’t always going to get what they want.  I’m talking about the ones who want homosexuality taught in kindergarten and who have not been interested in any compromise whatsoever up to this point.  Law is the adjustment of competing interests.  Other people have interests, too, and, sometimes, those interests are going to win out.  As I used to tell my clients: Litigation? Anything can happen.  I lost cases I should have won and won cases I should have lost.  That’s what happens when you let a court decide your dispute.  You lose control.  So another use of Masterpiece is to instill doubt in your opponents, and get them to reach some accommodation with you – to settle the case, in other words.

I’ll close with this: The Court in Masterpiece has handed people of faith an argument to make.  It’s up to them to fight for as much space under that argument as they can, so that it is applied as broadly as possible.  Who knows – some attorney somewhere, representing religious clients, might even come up with a masterpiece of argumentation that helps stem the anti-religious tide sweeping over the nation.
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Tonight, I discuss the presidential pardon power, including the question whether or not sitting Presidents can pardon themselves. But, first, an update:

Last time, I discussed whether the appointment of Robert Mueller as special counsel was constitutional under the Appointments clause. Mark Levin spent three nights on the question, arguing strongly that Mueller’s appointment was unconstitutional because Mueller was given wide powers to investigate.  This makes him like a U.S. Attorney, a principal officer who must be confirmed by the Senate.  Mark Levin discussed this on May 21st, 22nd, and 23rd, and you can find the shows on the Audio Rewind page at MarkLevinShow.com.

Going on now to the pardon power, it is found in Article II, Section 2 of the U.S. Constitution.  It is recognized to be a broad power with few limitations.  [Chemerinsky, Constitutional Law: Principles and Policies, 4th Ed., p. 371]  The Supreme Court in an 1866 case [Ex parte Garland, 71 U.S. (4 Wall.) 333,380] said the power extends to every offense known to federal law and may be exercised at any time – before criminal proceedings begin, while they are pending, or after conviction. 

The major limitation specified in the Constitution is that the President may not issue a pardon in cases of impeachment.  So Gerald Ford pardoned Richard Nixon for any and all crimes that Nixon may or may not have committed in a 5-year period ending in 1974. Articles of impeachment were voted out of the House Judiciary Committee, but that’s as far as they got.  So Nixon had not yet been impeached, and the fact that the pardon came before criminal proceedings began was likewise not a problem.  However, there was a third issue in Nixon’s case.  The Supreme Court has never ruled on the validity of open pardons – for any and all potential crimes - and some question their constitutionality. [here at ftn. 7]

There are some other limitations on the pardon power.  The President can’t pardon someone for state crimes, or for civil liability.  So, in a 1925 case, the President pardoned someone for criminal contempt of court but would not have been able to do so if it had been civil contempt of court.  [Ex parte Grossman, 267 U.S. 87, 121-122]  Also, the President cannot award any compensation from the U.S. Treasury to anyone granted a pardon. [Chemerinsky, p.374]

Pardons can take the form of complete exoneration – as if the crime had never been committed – or a reduced sentence.  In a 1927 case, the Supreme Court upheld the President’s power to reduce a death sentence to life imprisonment. [Biddle v. Perovich, 274 U.S. 480].  In 1974, the Supreme Court approved the President’s commutation of a death sentence on the condition that the person never be eligible for parole, even though the statute did not provide for a sentence of life without parole.  Any reduction in sentence is within the President’s power, the Court said. [Schick v. Reed, 419 U.S. 256].

Can the President pardon an entire group of people?  The answer is yes and it has happened at least twice.  Jimmy Carter used the pardon power to grant amnesty to Vietnam War draft dodgers in 1977. [Chemerinsky at 373] In 1868, President Andrew Johnson granted amnesty from prosecution for treason and all other crimes committed while fighting in the Civil War. [id.]

Could a President pardon everyone in federal prison – just open the doors and let everybody out?  Theoretically, the answer is yes, although the practice has developed over the years of following the recommendations of the Office of the Pardon Attorney at the Justice Department.  Conventional practice is to let that Office screen the applications, require anyone requesting a pardon to wait five years after conviction or release and demonstrate the ability to live a responsible and productive life.   But Trump did not follow convention in Dinesh D’Souza’s case this week – D’Souza didn’t ask for a pardon, Trump just did it.  Some have observed that Trump is drawn to cases where the prosecution was politically motivated, Sheriff Joe Arpaio being another case in point.   Pardons can be refused, by the way.  George Wilson was sentenced to death for robbing the U.S. mail, but chose to hang rather than accept a presidential pardon in 1833.  The Supreme Court said he was within his rights to do so. [United States v. Wilson: 32 U.S. 150 (1833)]

Rudy Giuliani said this week that, theoretically, President Trump has the power to pardon himself.  That’s disputed, of course.  The question came up in the Nixon era and again in 1998 when Bill Clinton was impeached.  A 1974 Justice Department memo took the position that Presidents can’t pardon themselves directly, but could do so indirectly under the Twenty-Fifth Amendment.  Presidents could declare themselves temporarily unable to perform the duties of the office, the Vice President as Acting President could pardon the President, then the President could resume office.  Some observers said this week that impeachment would await any President that tried to exonerate themselves through the pardon power.