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Not a day goes by without some article appearing to the effect that Trump is a dictator or a threat to democracy and the Constitution. Actually, Trump has defended the Constitution in at least four important ways.
First, he defended the Presidency against baseless impeachment charges. There was no Trump/Russia collusion, so the Democrats pivoted to the Ukraine phone call and obstruction of Congress. There was nothing of substance there, either, and the President’s defense team rightfully prevailed in the Senate trial. Nancy Pelosi and the Democrats showed themselves to be the threat to the Constitution, not Trump, by lowering the standard for initiating impeachment to virtually nothing at all. Second, Trump showed the national security and foreign service bureaucracy that it is the President, and not they, who controls national policy in foreign affairs and war. Who could forget the underlings during the impeachment process criticizing the President’s foreign policy and saying they know better than he does. Those bureaucrats are the threat to the Constitution, not Trump. Third, Trump has appointed scores of originalist judges to the federal bench. He fought for Justice Kavanaugh and now he’s fighting for Amy Coney Barrett to be confirmed to the Supreme Court. The Democrats who have obstructed the constitutional process for confirming judges are the threat to the Constitution, not Trump. Finally, Trump has firmly rejected globalism and reasserted American sovereignty at every turn. He pledged to put “America First” in his inaugural address. In a speech to the UN last year, Trump called on member states to embrace nationalism and reject globalism. He said, “The free world must embrace its national foundations. It must not attempt to erase them or replace them. The future does not belong to globalists, the future belongs to patriots.” That’s right. The U.S. Constitution, which the President swore an oath to uphold, is all about We the American People forming a more perfect Union, not the Left’s wackadoodle dream of We the Global Citizens chasing after a perfect world and heaven on earth. The globalists are the threat to the Constitution, not Trump. President Trump won’t be going on an ‘apology tour’ - or bowing down to foreign leaders like his predecessor did - any time soon, and we Americans are better off for his fidelity to the Constitution. The subject of religious tests for office came up several times this past week in connection with the nomination of Amy Coney Barrett for the Supreme Court.
You may recall that Illinois Senator Dick Durbin asked Barrett, “Do you consider yourself an orthodox Catholic?,” during her confirmation hearing for the Seventh Circuit Court of Appeals in 2017. Senator Dianne Feinstein notoriously said to Barrett at that time, “so many of us on this side have this very uncomfortable feeling ... [because] ... the dogma lives loudly within you.” Article VI of the U.S. Constitution prohibits religious tests for public office. It reads:
England had a religious test that excluded Catholics from office from 1673 to 1829. The religious test was a reflection of the fact that the Church of England was the official state religion there. England’s religious test for office was intended to protect the national church and the state “against perils from non-conformists of all denominations, infidels, turks, jews, heretics, papists, and sectaries.” Nine American colonies had religious tests, but the only objection voiced at the Constitutional Convention to banning them was they weren’t needed because of the supposed “prevailing liberality” regarding religion. During ratification, however, some argued in favor of religious tests as a safeguard against corruption in office, or to align with what most states were doing at the time, or out of prejudice against ‘heathens and Jews’. The Supreme Court applied the ban on religious tests in Article VI to the states in a 1961 case [Torcaso v. Watkins]. In that case, Maryland had refused to allow a man to be a notary public because he would not declare his belief in God. The Supreme Court wrote:
I could not find any cases directly concerning religious tests for office after 1961. So it’ is all pretty much cut and dried and settled law. If Durbin and Feinstein try this line of attack again this time around, Barrett’s supporters should not hesitate to say anti-religious bigotry lives loudly within them. President Trump’s pick to fill the vacancy on the Supreme Court, Judge Amy Coney Barrett, has been praised for her fidelity to the Constitution and respect for the rule of law.
She has criticized strict adherence to the legal doctrine of stare decisis and indicated she would rather follow the Constitution instead of Court-made doctrine. She does not view prior Court precedents as always binding. She has argued the doctrine should only be a “weak presumption” and judges should have more flexibility in constitutional cases. She has endorsed the view that “a justice’s duty is to the Constitution” and it is legitimate for judges to decide according to their best understanding of the Constitution rather than blindly follow precedent. She rejects the notion that any court “can declare a permanent victor in a divisive constitutional struggle.” This has the Left going nuts because it suggests she might vote to overturn Roe v. Wade if confirmed. She favors textualism which holds that courts cannot go against the plain language of a statute to effectuate legislative intent or fix a poorly written law. She wrote in 2017, “it is illegitimate for the Court to distort either the Constitution or a statute to achieve what it deems a preferable result.” This has the Left going nuts because she has specifically called out Chief Justice John Roberts for reaching out and saving the Obamacare statute with his cockamamie ‘it isn’t a tax, it is a tax’ gyrations. You won’t hear her talking about a ‘living, breathing Constitution’ any time soon. She appears to be an originalist, of the variety that gives the words in the Constitution their original public meaning. Also, she has argued judges have a limited role to play in our system of government and should stay in their lane. In 2016, she wrote that, “People should not look to the Supreme Court as a super Legislature. They should look at the Court as an institution that interprets our laws and protects the rule of law, but doesn’t try to impose policy preferences – that’s the job of Congress and the president.” Her critics fear she will follow the dictates of her Catholic faith instead of the law on issues like abortion. However, regarding the death penalty, she wrote: “Judges cannot—nor should they try to—align our legal system with the Church’s moral teaching whenever the two diverge.” They should, however, recuse themselves from a case if their personal convictions keep them from doing their job. “I would never impose my own personal convictions upon the law,” she testified. As for her judicial record, she has joined opinions allowing the death penalty to go forward in a couple of cases. She dissented in a Second Amendment case where the majority upheld a lifetime ban on firearm possession by a nonviolent felon, arguing the result was unconstitutional because there was no evidence the felon was a hi-risk individual. In an abortion case, she joined a dissent which argued Supreme Court precedents do not apply in the case of sex selection abortions. The dissent she joined emphasized not taking precedents beyond the facts at hand. That opinion argued, “We ought not impute to the Justices decisions they have not made about problems they have not faced.” She wrote the opinion in a case invalidating the university suspension of a male student who was found guilty of sexual violence. The school did not afford enough Due Process to the student, starting with the fact it refused to disclose the evidence upon which it based its decision. That was enough, in Barrett’s view, to render the process fundamentally unfair. Maybe I’ve lived too long, but Jeff Sessions said a lot of nice things about the rule of law in his confirmation process and was a disaster as Attorney General. More recently, Justice Gorsuch - praised by conservatives and appointed to the high Court by President Trump - expanded transgender rights in an opinion every bit as cockamamie as Roberts’ Obamacare opinion. Much has been written about Justice Harry Blackmun, a Nixon appointee, disappointing conservatives. I’ve mentioned before that the Supreme Court has become too powerful in ways the Founders never intended. While having Amy Coney Barrett on the Supreme Court would be far preferable than, say, a Hillary Clinton, let’s just hope that Barrett doesn’t succumb to Potomac Fever when she gets to Washington from Indiana. President Trump tweeted he would proceed to fill the vacancy left by Justice Ginsburg’s death without delay. Mitch McConnell said the nominee will receive a floor vote.
Former President Obama suggested the Senate should delay replacing Ginsburg until after the election. However, he himself nominated Merrick Garland in an election year, 2016, and argued the spot should be filled immediately. Joe Biden has demanded Ginsburg not be replaced until after the election. But he wrote in 2016 President Obama had a “constitutional duty” and should move quickly in that election year to fill the vacancy caused by Justice Scalia’s death. Chuck Schumer said the vacancy should not be filled until there is a new president. But he argued in 2016 that the Senate should act on Garland’s nomination, tweeting that 17 Supreme Court justices have been confirmed in presidential election years and telling the Senate to #DoYourJob. The late Justice Ginsburg left us so-called ‘instructions’ that her most fervent wish was that she not be replaced until a new president is installed. Sorry, but there is no ‘dead Justice’ rule requiring anyone to follow her wishes. The only rule is power: the Republican Senate denied Obama a vote on Garland in 2016 because it could, and is proceeding now because it can, and nothing in the Constitution or law prevents it. As for there only being some 40 days left before the election, Justice Stevens was confirmed in just 16 days after being nominated in 1975. Justice O’Connor’s confirmation only took 33 days and Justice Ginsburg herself was confirmed in just 42 days. They didn’t have Judiciary Committee hearings on Supreme Court nominees until 1916 [1], so maybe we should just skip the circus altogether and go right to a vote. All the flip-flops and political expediency aside, here’s what decides the case for me: The Democrats and their allies have spent the last four-plus years trying to run President Trump out of office. They spied on his 2016 presidential campaign and have yet to be brought to justice. They declared they would not accept the results of the 2016 election and resolved to become ‘ungovernable’ - their word, not mine. They rioted, smashed windows, and torched limousines at his 2017 inauguration. They consumed the next two years lying to us about Trump-Russia collusion. They gave up on that, but then lied about the Ukraine phone call and brought what has to be the lamest impeachment case, ever, against a sitting President, in all of American history. They failed miserably. Now they’re back out on the streets rioting for months on end trying to burn down federal buildings and blind police officers with lasers. The rioting stopped being about George Floyd a long time ago. They’ve already threatened to burn everything down and shut down the country if the Supreme Court nomination proceeds now. Hillary Clinton and others have told Biden not to accept the results of the current election, no matter what, and the Biden campaign has lined up 600 lawyers to contest election results in every corner of the land. And who can forget or forgive what happened to Brett Kavanaugh during his confirmation hearing - all those bogus last-minute accusations and the pictures of wild-eyed ignoramuses pounding on the doors of the Supreme Court. After all this, Donald Trump is supposed to stay his hand? Why should the Left’s refusal to accept a peaceful transition of power in the last election and their atrocious behavior ever since be rewarded with a delay now? If the shoe were on the other foot, you know darn well the Democrats would proceed. Elections have consequences. Refusing to accept election results should have consequences, too. A Virginia landlord has filed suit against the CDC’s eviction moratorium, alleging a whole host of constitutional violations. But the nub of the case is the landlord’s assertion that the moratorium is “an affront to core constitutional limits on federal power.” Tea Partiers have long been concerned with the aggrandizement of federal power, so we have to ask ourselves whether we are still concerned now that Trump, not Obama, is in office.
The landlord starts off his complaint with the observation that he expected, when he leased the property, that the tenant would pay rent and the landlord could go to court to seek an eviction if the tenant did not. The landlord continues to pay maintenance, utilities, and other expenses on the property. The CDC’s moratorium is unprecedented, not authorized by any statute, and suspends state law in the name of controlling the pandemic. There are six constitutional violations alleged in the complaint. First, the moratorium violates the landlord’s right to access the courts to seek lawful eviction. The right to access the courts is found in the intersection of the Privileges and Immunities Clause, Due Process, Equal Protection, and the First Amendment Petition Clause. Second, the Due Process Clause of the 5th and 14th Amendments and these other constitutional provisions, not agency declarations, are the supreme law of the land under the Article VI Supremacy Clause. Third, the CDC’s regulation cannot preempt state contract law under the 10th Amendment because the relevant statute generally does not allow CDC regulations to supersede provisions of state law. Fourth, the moratorium offends the Supreme Court’s anti-commandeering doctrine under the 10th Amendment because stopping evictions requires the participation of state courts and state officers to administer a federal program. Fifth, upholding the moratorium would mean that Congress has delegated power to an agency without giving the agency any guiding principles to limit the exercise of that power. In other words, Congress would be asking the CDC to do Congress’ job and legislate, when agencies are only supposed to regulate within boundaries Congress sets. Finally, the CDC is attempting to suspend state laws that govern the eviction process. This attempt by the executive branch to suspend laws enacted by the legislative branch, without the legislative branch having delegated that power to the executive branch, violates separation of powers, or so it is alleged. The landlord has filed for a preliminary injunction against enforcement of the moratorium, and that’s as far as the case has gotten as of this writing. Politically, the case looks like a neatly laid trap. Rule in favor of the CDC and you hand Trump a political victory. Rule against the CDC, you make every renter in America mad at you and hand Trump a political victory. Trump wins either way. A moratorium might sound great for tenants, but what about landlords? What about their property rights under the U.S. Constitution? It’s tempting to say the government should forbid evictions so tenants aren’t harmed, and even go on to say government should pay landlords so they are made whole. But can government at any level really afford to subsidize landlords indefinitely? Obviously not, so the only real solution to this problem is to end the lockdowns and get people back to work as quickly as possible. Government created a situation where lots of people can’t pay their rent, setting off a whole cascade of consequences throughout the economy, starting with landlords who, as a result, can’t meet their own obligations. With the number of COVID hospitalizations dwindling, it’s time for government to get out of the way and let life get back to normal. There’s been a flood of COVID-related litigation since I last reported to you on this topic in May. Tonight, we look at three cases - one in New Hampshire and two about reopening schools in Florida and California.
You may recall that, nationally, the lockdowns were originally justified as ‘flattening the curve’ and keeping the hospital system from being overwhelmed. The hospitals never did get overwhelmed and the rationale for the lockdowns started shifting to waiting for a vaccine, finding a cure, and keeping everybody safe forever. In New Hampshire, Mary Rivard filed suit contesting the extension of the Governor’s COVID restrictions that kept her business, a hair salon, unable to open profitably. The case is interesting because Rivard argued the original justification for the lockdown had disappeared and, therefore, the Governor’s order was unconstitutional. At a court hearing, Rivard’s lawyer argued further that the number of fatalities, hospitalizations, and confirmed cases in the state did not meet the threshold for the Governor to declare a state of emergency, and that the pandemic turned out not to be as severe as predicted. The state argued the Governor was following the advice of public health professionals and the virus was still around causing problems. The case was filed in May and heard in June. There has been no decision. In California, the state Supreme Court took the unusual step of agreeing to hear two lawsuits about reopening schools without waiting for the cases to work their way through the lower courts. The state’s high court has “original jurisdiction”, in cases of “great public importance that must be promptly resolved.” One of the cases was filed by the Orange County Board of Education. The Board is arguing that the state’s actions restricting school reopenings violate the Equal Protection Clause of the California state constitution. The crux of the argument is that schools in counties still on the state’s coronavirus watch list face more restrictions on reopening than schools in counties that are not on the list. An attorney for the schools said at a press conference, “The California Constitution has an equal protection clause that says all kids… kids with special needs, minority children, poor children, kids from single parent families; they all deserve an equal education.” The lawsuits are asking the court to give schools and parents more discretion to decide what to do. The state was supposed to respond to the lawsuits this past Friday and a decision could be handed down as early as this coming week. In Florida, the state ordered schools to reopen brick-and-mortar classrooms by the end of August, but Florida’s largest teachers union and the NAACP sued, claiming it was not safe to do so. This past Monday, a Florida judge agreed it was not safe and issued a temporary injunction allowing local school boards to decide whether to reopen. The judge wrote that the state’s order is “unconstitutional to the extent that it arbitrarily disregards safety, denies local school boards’ decision making with respect to reopening brick-and-mortar schools, and conditions funding on an approved reopening plan with a start date in August.” The state filed a notice of appeal right after the decision. Florida’s Education Commissioner said the lawsuit is frivolous and harms parents who want their kids back in school. All three cases I talked about tonight are still up in the air. Stay tuned. A professor and the Arizona community college system he teaches for won an important victory for academic freedom this past week.
Professor Nicholas Damask was teaching a course on world politics that included some material about Islamic terrorism. He assigned a text that discussed Islamic terrorism and he asked a question about the text on a quiz. The quiz asked, among other things, whether the primary meaning of jihad is understood in the Arab world to be violent warfare or just a spiritual struggle. A Muslim student was offended by the text and the quiz and ran straight to CAIR [the Council on American-Islamic Relations]. CAIR filed suit in federal court on the student’s behalf. A federal judge rejected all of the plaintiffs’ arguments and dismissed the case. The judge’s reasoning is instructive. The student’s first argument was that Professor Damask’s actions as the government violated the Establishment Clause of the First Amendment to the U.S. Constitution by expressing disapproval of a religion. The court rejected this argument, saying that some disapproval is not enough under long-standing case law to make out a constitutional violation; it must be the government’s primary purpose to inhibit the practice of a religion, in this case Islam, to violate the Establishment Clause. But, here, the primary purpose was to teach a course in world politics. The material on Islamic terrorism was only one module out of six, and it was presented in the context of explaining terrorism, not criticizing religion. Moreover, the plaintiffs had cherry-picked the material in presenting their case; the Professor had also included a quote from another scholar to the effect that only Muslim extremist groups interpret Islam to condone terrorism. The student’s second argument was that the government’s actions violated the First Amendment Free Exercise Clause by forcing him to denounce his religion in choosing the correct answer about the primary meaning of jihad on the quiz. The court rejected this argument, also, saying the requisite coercive effect was missing. The quiz merely asked the student to demonstrate his understanding of the course material, not to adopt any particular viewpoint. The court cited a prior case for the proposition that course material that merely conflicts with a student’s religious beliefs does not, by virtue of that fact alone, violate the Free Exercise Clause. The prior case rejected the argument of Christian students that the practice of their religion had been burdened by having to read about gay couples for a class. There’s a difference between merely exposing students to views contrary to their beliefs, on the one hand, and actually interfering with the practice of their religion on the other, the court said. Mere exposure to contrary attitudes was deemed not to interfere with the Christians’ beliefs in the prior case or with the Muslim’s student’s beliefs in the Arizona case. That’s it for the court’s First Amendment analysis. There are three other issues worth mentioning. First, the judge tossed CAIR out of court on separate grounds, ruling CAIR lacked standing to be there. It could not show any injury to its organization that could get it through the courthouse door. Its claim that it had to divert resources to deal with this case was unproven, and the fact that it had to hire a religious scholar to craft arguments about Islamophobia for this case was nothing beyond the kind of ordinary advocacy CAIR undertakes every day. No injury, no standing. Second, the court found that prior cases are in disarray so that Professor Damask was not on notice he was possibly running afoul of the Constitution. There were no prior cases clearly establishing beyond debate that what he was doing violated the Muslim’s student’s constitutional rights. Without such notice, the court said that Professor Damask would have had qualified immunity even if the plaintiffs had been able to make their constitutional arguments stick. Finally, let’s go back to the part of the court’s opinion about government action that merely offends religious beliefs not violating the Free Exercise Clause. This is important for what it implies for free speech regarding Islam. The Muslim student in this case was essentially saying he was offended by the contrary material. That’s the crux of the argument Muslims make in wanting to shut down all criticism of Islam. They want to stop all speech they find offensive in this regard, even if the content of the speech is true. Under sharia law, libel is anything that insults Islam or causes any Muslims to take offense about their religious beliefs. Truth is not a defense to libel in sharia law, as it is under American law. Muslims around the world feel perfectly justified in rioting in ‘Days of Rage’ if they are offended by what a speaker said, even if what the speaker said was true. They are essentially saying we should all keep our thoughts to ourselves so Muslims don’t go on a rampage. We call that the ‘heckler’s veto under American concepts of free speech and it’s unacceptable under our constitutional jurisprudence. Unfortunately, European speech codes have moved in the direction of shutting down speech that offends Muslims for any reason. Let’s hope that European speech codes never come to America. I’m glad the judge in the Arizona case came down on the side of saying that, even if Muslims are offended by what is said about their religion, it does not mean that the Constitution has been violated or that Muslims get to shut down all debate about Islam in America. In March, I told you about a book raising the troubling question of whether Muslim politicians can truly follow their oath of office to support the U.S. Constitution. The question arises because sharia law conflicts with the Constitution in so many ways. The book is Islamic Doctrine Versus the U.S. Constitution: The Dilemma for Muslim Public Officials, written by Stephen Kirby and published by the Center for Security Policy.
Since March, I have been working with the author and other activists on the Muslim Oath Project to bring attention to this issue. The Muslim Oath Project resides on my personal website, Liberato.US. Dr. Kirby sent questionnaires to 233 Muslim office-holders and candidates across the country asking whether they would express support for the Constitution. Only 16 expressed support for our founding document. That means 93 percent of all Muslim politicians contacted would not. Which leads to the following obvious question: If Muslim politicians won’t express support for the Constitution, why should they get to lead us? Remember: Muslims believe sharia law is the supreme law of the land, above any human law or Constitution. Evidently, 93 percent of Muslim politicians in America prefer a code that imposes amputation for theft, stoning for adultery, and death to apostates to a document which limits the powers of government and guarantees individual rights. A cancer is growing in the body politic; the list of Muslim office-holders is very long in states like New Jersey, Michigan, and Minnesota. Virginia, New York, Illinois and several other states are not far behind. Dr. Kirby, with the help of other activists, has just completed a 10-part video series exploring the conflicts between sharia law and the U.S. Constitution. The video series is also on Liberato.US. Each video is about seven minutes long and explores a different constitutional issue like the oath of office, slavery and the 13th Amendment, freedom of speech, freedom of religion, and cruel and unusual punishment. Dr. Kirby and others have been called racists and Islamophobes for raising these questions. Islam claims to be above all criticism, even criticism based on constitutional grounds. But, as Dr. Kirby likes to point out, CAIR itself says, "It is not appropriate to label all, or even the majority of those, who question Islam and Muslims as Islamophobes." (Documentation here.) Dr. Kirby and those helping him are not engaged in rants. Every point is factual, often from Islamic sources considered authoritative by Muslims themselves. Not only is everything Kirby says factual, but the material examines some of the most fundamental questions that ought to concern every American - Is the U.S. Constitution the supreme law of the land or not? Are we to be governed by a theocracy where the mullahs control every aspect of your life, right down to which hand to use when you’re going to the bathroom? Do we really want a country where there is no free speech for anybody or no equal protection of the law for women? Where barbaric punishments like chopping people’s hands off and stoning them to death are allowed by law? Or do we want to continue the American Idea with limited government and individual rights, as set forth in the Constitution? This is not a rant; this is exactly the ground that we as Tea Partiers need to be fighting on. The final video is a call to action. Ways to get involved can be found on the Muslim Oath Project pages. Maybe you think it doesn’t hurt bad enough yet, but the problem with waiting until it does is, by that time, it will be too late. Tackling the situation now gets my vote. My friends, the rise of the authoritarian Left is the central challenge of our time.
We saw it when they rammed Obamacare down our throats and we see it again this summer with Antifa rioting and cracking heads in the streets. On another front, the ACLU is suing a Catholic hospital to force it to perform transgender surgery against its beliefs. Nothing against transgender people, but the authoritarian Left is using them to come after your religious liberty. If the authoritarian Left gets ahold of the reins of power, we will no longer be a free people. My friends, this is why the Constitution matters. It is worth fighting for, it is worth dying for. We are still a free people, in no small part because of the Constitution. We govern ourselves. We don’t have a king or a tiny elite ruling over us. We have popular sovereignty, thanks to the Constitution. We have the Rule of Law in this country. We are not governed by the whims of a tyrant or a small group of self-appointed masterminds, thanks to the Constitution. We have individual rights. We are free to speak our minds. We have the right to bear arms which shall not be infringed, thanks to the protections in the Constitution. Our rights don’t come from government. We are born with these rights. The truth of the matter is that government’s rights come from us, thanks to the Constitution. We have limited government with powers derived from the consent of the governed, thanks to the Constitution. Not so in the autonomous zones we saw in Seattle and elsewhere this summer. There, power grew out of the barrel of a gun, just like Chairman Mao said. There was no Rule of Law, no consent of the governed. There were no elections, no guaranteed rights. The individual was not protected, just like communism. Self-appointed warlords carrying assault rifles told everybody what to do, just like the Soviet communists did in Ukraine when they were stealing all the grain in the Holodomor famine that killed millions in the 1930s. This concentration of power in the hands of a few is exactly what our Founders warned us about. You put too much power into the hands of too few people and bad things happen. You put too much power into the hands of too few people and pretty soon 100 million people are dead, as under communism. Too much power got into the hands of too few people in Seattle’s autonomous zone and people got shot. One died. One too many. That wasn’t limited government; that was might makes right and its inevitable result when the Rule of Law breaks down and raw, naked power is the only game in town. At a basic level, the dispersal of power is what the Constitution is all about. That’s why there are checks and balances, separation of powers in three branches of government, and powers divided between Washington and the states under federalism under the 10th Amendment. The whole point is to divide up power in as many ways as possible, so the few can’t take over everything, and the many are left in peace to enjoy their liberty and their natural rights. This is why the authoritarian Left hates the Constitution so much. The Constitution is in their way. The Constitution stands between them and what they want to do to you. This is why they want to interpret it out of existence or get rid of it altogether. The Constitution prevents them from seizing all power and imposing their will on us. The Constitution with its Bill of Rights is what stands between you and AOC, the Squad, the self-declared socialist Bernie Sanders, the Antifa goons whose roots are in communism, and the admitted ‘trained Marxists’ of Black Lives Matter. My friends, the authoritarian Left is coming for you and your rights. Will you be ready? We will ALL have to be ready if we are to prevail and remain a free people. ‘Rioters Have Been Grabbed Off the Street Without Probable Cause’ - Round One Goes to the Government8/5/2020
Congressman Ted Lieu of California and other Democrats have alleged that federal agents have seized protesters, placed them in unmarked vehicles, and detained them for several hours before releasing them. Lieu called these ‘police state’ tactics.
The Fourth Amendment to the U.S. Constitution protects people against unreasonable search and seizure. The state of Oregon recently went to court to get a temporary restraining order to prevent the federal government from seizing protesters off the street without probable cause in the future. Oregon lost. The federal judge assigned to the case began his opinion by pointing out that protesters whose rights are violated can sue for money damages and injunctive relief themselves. But this case was different because the plaintiff was the state of Oregon, not a protester. Moreover, the state was suing to stop unlawful practices from happening in the future, not to redress harm done to protesters in the past. Several pages later, the judge concluded that Oregon lacked standing to bring such a case, because it had no interest in the matter specific to the state itself. The opinion referred to numerous reports cited by the state that federal agents were grabbing protesters and shoving them into unmarked vehicles. The allegations, if true, amounted to ‘”seizures” under the Fourth Amendment, the judge acknowledged. However, the Oregon Attorney General overstated the evidence. The judge reviewed the evidence the state presented, and found there was only one instance of an arrest without probable cause and one case of an unreasonable seizure. The judge found it notable that the state did not pursue the notion - or request any relief - regarding the supposed use of unmarked vehicles. The state let that assertion go. Overall, the judge said the state’s comparison of current events to the 30,000 people who were disappeared in Argentina 40 years ago was completely off base. He ruled that Oregon did not have standing to seek a restraining order to prevent widespread 4th Amendment abuses in the future based on a record of just two incidents. He also found not credible the state’s claim that it was injured because reports of random seizures by the feds might encourage counter-protesters to dress up like police officers and kidnap protesters. The state admitted it didn’t have a shred of evidence from anywhere, at any time, to support this theory, making it just wild speculation. The state could have, but did not, show that all of the government’s seizures lacked probable cause - there have been dozens. Also, the state failed to produce any evidence that federal agencies had given their personnel standing orders to grab people at random off the street. The state had no evidence of any of this, and thus failed to establish these are widespread practices. Without widespread practices, the state had no standing to obtain the sweeping injunctive relief it sought for the future, the judge ruled. So, Oregon gets an ‘A’ for creativity, but its wild legal theories didn’t pass the ‘laugh test’, as they say in the legal business. This was not a close question. Oregon had to know they didn’t have a legal leg to stand on. So the question becomes, why did they pursue it? |
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