Issues in the American Creed (Constitutional Law and related matters) SCOTUS

[Crafty_Dog]

Noted.  TY.

[Body-by-Guinness]

23 states and DC support the Biden side of the argument in Missouri v. Biden:

https://www.thegatewaypundit.com/2024/03/23-democrat-states-district-columbia-file-amicus-briefs/?fbclid=IwAR0Ai7JkNWxx3eet_35nBjHG2vCKkmBH4JuPSAuaiiEoFGHNA0ku5MCruY8

Shameful, unconstitutional behavior.

[Crafty_Dog]

A case of primal importance.

[ccp]

for being originalists instead of textualists.

(and of course, the Conservative justices  )


from far far left wing rag DNYUZ:
 
https://dnyuz.com/2024/03/18/justice-breyer-off-the-bench-sounds-an-alarm-over-the-supreme-courts-direction/

yet, some interesting (to me who knows little about such matters) about textualism vs originalism

This also noteworthy:

"Justice Breyer retired a little reluctantly, under pressure from liberals who wanted to make sure that President Biden could appoint his successor and that the conservative supermajority on the court, currently at 6 to 3, would not get any more lopsided."

[Body-by-Guinness]

District Court Judgment in 303 Creative v. Elenis (the Wedding Web Site Design Case)
The Volokh Conspiracy / by Eugene Volokh / Mar 28, 2024 at 5:45 PM

Following the Supreme Court's remand to the Tenth Circuit, which in turn led to the remand to district court, Chief Judge Philip Brimmer (D. Colo.) rendered the following order Tuesday:

It is ORDERED that plaintiffs are the prevailing parties in this action under 42 U.S.C. § 1988(b). Plaintiffs and their counsel are entitled to recover their reasonable attorney's fees, costs, and expenses for work related to litigation before the district court. It is further

ORDERED that the First Amendment's Free Speech Clause prohibits Colorado from enforcing the Accommodation Clause of Colorado's Anti-Discrimination Act ("CADA"), Colo. Rev. Stat. § 24-34-601(2)(a)), to compel plaintiffs to create custom websites celebrating or depicting same-sex weddings or otherwise create or depict original, expressive, graphic or website designs inconsistent with her beliefs regarding same-sex marriage. It is further

ORDERED that the First Amendment's Free Speech Clause prohibits Colorado from enforcing CADA's Communication Clause to prevent plaintiffs from posting the following statement on her website or from making materially similar statements on her website and directly to prospective clients:

I firmly believe that God is calling me to this work. Why? I am personally convicted that He wants me – during these uncertain times for those who believe in biblical marriage – to shine His light and not stay silent. He is calling me to stand up for my faith, to explain His true story about marriage, and to use the talents and business He gave me to publicly proclaim and celebrate His design for marriage as a life-long union between one man and one woman.

These same religious convictions that motivate me also prevent me from creating websites promoting and celebrating ideas or messages that violate my beliefs. So I will not be able to create websites for same-sex marriages or any other marriage that is not between one man and one woman. Doing that would compromise my Christian witness and tell a story about marriage that contradicts God's true story of marriage – the very story He is calling me to promote.

It is further ORDERED that defendants, their officers, agents, servants, employees, attorneys, and those acting in active concert or participation with them who receive actual notice of this order are permanently enjoined from enforcing:

[a.] CADA's Accommodations Clause to compel plaintiffs to create custom websites celebrating or depicting same-sex weddings or otherwise to create or depict original, expressive, graphic or website designs inconsistent with her beliefs regarding same-sex marriage; and

[b.] CADA's Communication Clause to prevent plaintiffs from posting the above statement on her website and from making materially similar statements on her website and directly to prospective clients….

For more on the reasoning, see the full order. The quick summary of the underlying factual dispute:

Plaintiff Lorie Smith, through her business, plaintiff 303 Creative LLC …, offers a variety of creative services, including website design, to the public. Ms. Smith intends to expand the scope of 303 Creative's services to include the design, creation, and publication of wedding websites. However, plaintiffs will decline any request to design, create, or promote content that promotes any conception of marriage other than marriage between one man and one woman. Plaintiffs have designed an addition to 303 Creative's website that includes a statement that they will not create websites "celebrating same-sex marriages or any other marriage that contradicts God's design for marriage."

The post District Court Judgment in 303 Creative v. Elenis (the Wedding Web Site Design Case) appeared first on Reason.com.

https://reason.com/volokh/2024/03/28/district-court-judgment-in-303-creative-v-elenis-the-wedding-web-site-design-case/

[DougMacG]

https://www.cnn.com/2024/04/16/opinions/justice-sonia-sotomayor-retire-reyes/index.html

She's in her 60s (69).  The President who would pick her replacement is in his 80s.  Schumer and Durbin are nearly that. Her mom lived into her 90s.  She lives with Type 1 diabetes. Minchin and Sinema are not reliable votes.

What part of lifetime appointment don't they understand.

[DougMacG]

Justice Sonia Sotomayor:  “I’m not sure I understand the distinction why the states would have the power [to institute a mandate such as  OSHA’s], but the federal government wouldn’t,”

Tenth Amendment: “the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

https://www.nationalreview.com/news/justice-sotomayor-claims-not-to-understand-the-distinction-between-state-and-federal-powers/

[Crafty_Dog]

Back when I was teaching Constitutional Law at UNC Pembroke I had our class spend quite a bit of time on a 5th Circuit Case that grappled with precisely this question.

Doug is 100% correct, the "Police Power", which includes health matters was not granted to the Feds and thus, per the Tenth, pertains to the States.

The problem is the unsound jurisprudence surrounding the Interstate Commerce Clause-- the idea being that pandemics affect Interstate Commerce.

There is an additional layer here regarding Separation of Powers-- here OSHA was acting in a quasi-legislative manner which presents the C'l question as to whether its enabling statute granted it such, and even if it did, was it C'ly permissable- i.e. was an intelligible limiting principle whose articulation could enable meaningful judicial review of this question when presented.

[ccp]

https://www.msn.com/en-us/news/politics/supreme-court-restores-louisiana-voting-map-with-majority-black-district/ar-BB1msdEn?ocid=msedgntp&pc=DCTS&cvid=5524c6d503254e119e375df6ee83c6f5&ei=21

[ccp]

https://www.breitbart.com/clips/2024/05/22/blumenthal-alito-is-unfit-to-serve-at-a-minimum-he-must-recuse-from-all-trump-cases/

Me:

MAGA

could read =

PATRIOT

The LEFT uses MAGA as some sort of derogatory label.

As always they steal the language and distort its' meaning.

To them MAGA = nazi
To me MAGA = American Patriot

screw them.

Bottom line:
being a patriot is NOT a disqualification for SCOTUS
anymore then being a Democrat is
think all the libs who are and have been on SCOTUS.
Should we disqualify them?

[Crafty_Dog]

"Upon further reading, Locke and his philosophical progeny understood the "laws of nature" are the moral law that God plainly reveals to all of humanity and can be discerned through reason, and without religious observance."

From a pleasant conversation on another forum.   The reference to "the Laws of Nature" is from our Declaration of Independence's phrase "the laws of Nature and of Nature's God".

[Crafty_Dog]

I disagree with this due to lack of present day talent and doubts about ability to prevent runaway horseshit, but share it here in the interest of convesation:

file:///C:/Users/craft/Downloads/ConventionofStatesSummary.pdf

[Crafty_Dog]

NYT Scoop: Alito Is an 'Insurrectionist'
The Supreme Court justice has faced attacks over a couple of flag displays at his homes.

Nate Jackson


Democrats need to delegitimize the Supreme Court so they can eventually pack it with loyal leftists. Keep that in mind every time they attack Clarence Thomas over a vacation or Samuel Alito over a flag.

The latter justice has been the subject of leftist consternation for the last week or so, ever since The New York Times put a team of crack journalists on the case of a couple of flags flown by the Alito family.

First up was a breathless story drawing a straight line from Justice Alito to January 6. "At Justice Alito's House, a 'Stop the Steal' Symbol on Display," read the Times headline, followed by the teaser, "An upside-down flag, adopted by Trump supporters contesting the Biden victory, flew over the justice's front lawn as the Supreme Court was considering an election case."

The story didn't use the word "insurrectionists" (or, as Joe Biden recently called them, "erectionists"), but the Times insists the connection was clear: "The upside-down flag was aloft on Jan. 17, 2021, the images showed. President Donald J. Trump's supporters, including some brandishing the same symbol, had rioted at the Capitol a little over a week before."

Never mind that Alito was on the losing side of that election case, meaning the flag had no bearing on the outcome of the case.

More importantly, "I had no involvement whatsoever in the flying of the flag," Justice Alito said in an emailed statement to The Times. "It was briefly placed by Mrs. Alito in response to a neighbor's use of objectionable and personally insulting language on yard signs."

Shannon Bream of Fox News shares what the Times didn't tell you:

I spoke directly with Justice Alito about the flag story in the NYT. In addition to what's in the story, he told me a neighbor on their street had a "F*** Trump" sign that was within 50 feet of where children await the school bus in Jan 21. Mrs. Alito brought this up with the neighbor. According to Justice Alito, things escalated and the neighbor put up a sign personally addressing Mrs. Alito and blaming her for the Jan 6th attacks.

So, where did the "Stop the Steal" connection come from? An "expert" cited by the Times called an upside-down flag "the equivalent of putting a 'Stop the Steal' sign in your yard."

Oh, so it's a dog whistle for "experts."

The truth is that an upside-down flag has long been understood as a sign of distress.

A few days later, the Times put three journalists on another story about a "provocative flag" flown by the Alitos: "The justice's beach house displayed an 'Appeal to Heaven' flag, a symbol carried on Jan. 6 and associated with a push for a more Christian-minded government." The Times spends much of its word count in both articles discussing ethics rules for jurists, though none of those rules apply to spouses.

This flag appeared at the Long Beach Island house in 2023, but it, too, sounded the same dog whistle for "Stop the Steal."

Senator Dick Durbin called it part of "the Court's ongoing ethical crisis." Senator Mazie Hirono wailed, "We have an out-of-control Supreme Court majority." Clearly, the real game here is to delegitimize the Court. Senator Jeff Merkley literally said it: "Frustration with the Court in the sense that it is illegitimate is extremely high."

The long-term objective is delegitimizing the Court, but the short-term aim is winning a couple of cases. "Alito must recuse himself immediately from cases related to the 2020 election and the January 6th insurrection," Durbin insisted. He didn't say it, but these hit pieces are also retribution for Alito having written the Dobbs decision overturning Roe v. Wade.

The Democrats attempt to smear and discredit every originalist, and they have been doing so since Ted Kennedy made a sick sport out of "borking" nominees to the bench. Alito was the victim of that same vile tactic in 2006, which left Mrs. Alito in tears at the time.

Furthermore, call me crazy, but it's pretty rich for leftists to be outraged about flags. They burn the American flag, for one thing, in addition to kneeling instead of saluting it during the national anthem. Spare me the outrage over flying it upside down.

They also plaster rainbow flags over almost literally everything (including the American flag) for large parts of the year, especially "Pride Month," which — I appeal to heaven! — starts in a few days. Last year in June, Joe Biden flew the garish transgender flag from the White House itself — while some dude flashed his prosthetic breasts on the lawn, I might add. Biden's State Department flies the rainbow flag at its facilities all over the world (except in Muslim countries).

"The Constitution provides that the government shall not establish any official religion," opined Senator Brian Schatz, but the rainbow flag is arguably a symbol of the Left's state religion. But the Times reporters have their knickers in a twist over a Revolutionary-era flag.

The "Appeal to Heaven" flag, by the way, originates with an important American named George Washington. Maybe the Times reporters have heard of him. He specifically commissioned it in 1775, and it was designed by his personal secretary, Colonel Joseph Reed. In a sense, it was the symbol of a real insurrection — the one against the British tyrants who overtaxed and tried to disarm American colonists. Come to think of it, that sounds familiar...

[Crafty_Dog]

https://www.dailymail.co.uk/news/article-13458625/Sonia-Sotomayor-says-cries-rulings-conservative-majority-court.html?ns_mchannel=rss&ns_campaign=1490&ito=social-twitter_dailymailus

[ccp]

what waw it some million dollar book deal!

maybe she takes solace in this:

https://www.celebritynetworth.com/richest-politicians/democrats/sonia-sotomayor-net-worth/

I am not saying Justices should not be wealthy just that she is a hypocrite.

[ccp]

" Tatel particularly criticizes Roberts’ opinions on race, including to eliminate voting rights protections, a core plank of America’s civil rights revolution. "


https://www.msn.com/en-us/news/politics/former-federal-judge-blasts-john-roberts-in-new-book-and-says-ruth-bader-ginsburg-was-annoyed-by-pressure-to-retire/ar-BB1nfl7O?ocid=msedgntp&pc=DCTS&cvid=e0ac8feefe584bca811da83602fccdd8&ei=16

Not sure what the hell he is talking about.
Since when cannot Black people vote?

NOT  mentioned is this from Wikipedia:

n October 2019, Tatel filed the majority opinion in Trump v. Mazars USA, LLP, finding that the U.S. House of Representatives Committee on Oversight and Reform had the authority to compel Mazars, via subpoena, to produce documents relating to the personal financial information of President Donald Trump, including several years' worth of income tax returns.[11] That decision was vacated and remanded, 7–2, by the Supreme Court in an opinion written by Chief Justice John Roberts on July 9, 2020.[12]

Just another partisan Democrat judge......

[Body-by-Guinness]

Those despairing over over Trump’s conviction today in NY should be heartened by the ruling where another amok NY state attorney leaned on financial companies base in NY to stop doing business with the NRA. The Supreme Court rained all over that parade.

Indeed, given the lawfare we’ve been bearing witness to perhaps it’s time to start gaming out a way to deal with jurisdictions that convict Repubs for lawful behavior and acquit Dems for unlawful behavior. Perhaps upon so many reversals a change of venue is automatically made in certain jurisdictions? As noted before, I’m no lawyer, but I’ve little doubt the Founders would not be fans of seeing Blue cities warp the law as rural(er) red zones never see similar cases:

NRA Secures Landmark Legal Victory; Supreme Court Unanimously Rules for NRA in First Amendment Case Against Former New York Regulator

THURSDAY, MAY 30, 2024 NRA Secures Landmark Legal Victory; Supreme Court Unanimously Rules for NRA in First Amendment Case Against Former New York Regulator

The National Rifle Association of America (NRA) scored a historic legal victory today in one of the most closely followed First Amendment cases in the nation.

In a stinging rebuke of New York’s “blacklisting campaign” against the NRA, the Supreme Court unanimously ruled for the NRA in its case against former New York State Department of Financial Services Superintendent Maria T. Vullo. The decision remands the NRA’s case to the lower court – reviving the NRA’s claims that Vullo, at the behest of former New York Governor Andrew Cuomo, violated the NRA’s First Amendment rights when she urged banks and insurers to cut ties with the NRA in 2018.

“This victory is a win for the NRA in the fight to protect freedom,” says NRA President Bob Barr. “This is a historic moment for the NRA in its stand against governmental overreach. Let this be clear: the voice of the NRA membership is as loud and influential as ever. Regulators are now on notice: this is a win for not only the NRA, but every organization who might otherwise suffer from an abuse of government power.”

The case was argued before the U.S. Supreme Court on March 18, 2024. The case is one of the most high-profile First Amendment cases in recent memory, with dozens of legal experts and constitutional scholars, including the ACLU, siding with the NRA.

“This is a moment of truth,” says NRA EVP & CEO Doug Hamlin. “The decision underscores the importance of this principled fight. When it comes to defending our members and their freedoms, the NRA will never back down.”

The opinion of the court, written by Justice Sonia Sotomayor, states, “Six decades ago, this Court held that a government entity’s ‘threat of invoking legal sanctions and other means of coercion’ against a third party ‘to achieve the suppression’ of disfavored speech violates the First Amendment… Today, the Court reaffirms what it said then: Government officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors. Petitioner National Rifle Association (NRA) plausibly alleges that respondent Maria Vullo did just that.”

“This is a landmark victory for the NRA and all who care about our First Amendment freedom,” says William A. Brewer III, counsel to the NRA. “The opinion confirms what the NRA has known all along: New York government officials abused the power of their office to silence a political enemy. This is a victory for the NRA’s millions of members and the freedoms that define America.”

In the opinion, Justice Sotomayor writes that Vullo was “free to criticize the NRA” but “could not wield her power, however, to threaten enforcement actions against DFS-regulated entities in order to punish or suppress the NRA’s gun-promotion advocacy.”

Justice Sotomayor continues, “One can reasonably infer from the complaint that Vullo coerced DFS-regulated entities to cut their ties with the NRA in order to stifle the NRA’s gun-promotion advocacy and advance her views on gun control.”

The History of the Case

In a May 2018 lawsuit, the NRA alleged that Vullo, at the urging of Governor Cuomo, took aim at the NRA and conspired to use DFS’ regulatory power to “financially blacklist” the NRA – coercing banks and insurers to cut ties with the Association to suppress its pro-Second Amendment speech. The NRA argues that Vullo’s actions were meant to silence the NRA – using “guidance letters,” backroom threats, and other measures to cause financial institutions to “drop” the Association.

The NRA's First Amendment claims withstood multiple motions to dismiss. But in 2022, after Vullo appealed the trial court’s ruling, the Second Circuit struck down the NRA’s claims. The court ruled that in an era of “enhanced corporate social responsibility,” it was reasonable for New York's financial regulator to warn banks and insurance companies against servicing pro-gun groups based on the supposed “social backlash” against those groups’ advocacy. The court also ruled that Vullo’s guidance – written on her official letterhead and invoking her regulatory powers – was not a directive to the institutions she regulated, but rather a mere expression of her political preferences.

On February 7, 2023, the NRA petitioned the U.S. Supreme Court, seeking review of the Second Circuit decision. On November 3, 2023, the Court granted review of the case.

Twenty-two amicus briefs representing more than 190 individuals and organizations were filed in support of the NRA’s position, including a filing by several of the nation’s foremost First Amendment scholars. The amicus briefs also included a joint filing by dozens of congressional Republicans and filings by 25 state attorneys general. The support came from across the political spectrum.

On Monday, March 18, 2024, the Court heard oral arguments in the case. ACLU National Legal Director and NRA counsel David Cole argued that Vullo and other New York officials abused their authority in violation of the First Amendment, telling the justices: “There's no question on this record that they encouraged people to punish the NRA.” Cole said, “It was a campaign by the state’s highest political officials to use their power to coerce a boycott of a political advocacy organization because they disagreed with its advocacy.”

Eugene Volokh joined Brewer and the ACLU in representing the NRA, along with Brewer partners Sarah B. Rogers and Noah Peters.

[ccp]

We have been hearing Mark Levin and Alan Dershowitz speak of violations of Due Process being applied to DJT.

So of course Jamie Raskin uses the same tactic against SCOTUS he does not like.

https://www.alternet.org/doj-alito-thomas/

PS:
Dershowitz stated knowing Larry (Lib Tribe) for decades said how he always would interpret the Constitution in a way favorable to crats.

And he can always somehow twist it [my words] in some way to do just that.

[Body-by-Guinness]

Wants to be able to inform people when they are subject to collection efforts by law enforcment, Trump in this instance:

X Asks SCOTUS to Rule on Fishing Expeditions

X Corp. asks Supreme Court to review process that led Jack Smith to obtain Trump Twitter files
The social media company argues that a district judge ran afoul of the First Amendment when she ordered the company to turn over Trump’s data.
 The opening page of X is displayed on a computer and phone.
X Corp. is asking the justices to consider whether social media services can be forced to share data about their users with government investigators while being barred from informing those users about the requests. | Rick Rycroft/AP

By KYLE CHENEY
06/04/2024 02:08 PM EDT
Last year, federal courts in Washington, D.C. forced Elon Musk’s X Corp. to fork over reams of data from Donald Trump’s account to special counsel Jack Smith without telling Trump and giving him a chance to intervene.

Now the company is urging the Supreme Court to prevent such a scenario from unfolding again, a demand that could radically alter the way criminal investigators deploy secret search warrants and subpoenas for sensitive information.

X Corp. is asking the justices to consider whether social media services can be forced to share data about their users with government investigators while being barred from informing those users about the requests.
Trump’s material, the company noted, might have been subject to claims of executive privilege. But other users might have their own privileges to invoke, from attorneys to journalists to spouses.

In the case of Trump’s account, a federal district judge in Washington D.C., Beryl Howell, rejected X Corp.’s protestations and endorsed a so-called “nondisclosure order” that barred the company from informing Trump about Smith’s subpoena. She reasoned that prosecutors had presented evidence that informing Trump could endanger the information and cause risks to Smith’s probe.

In February 2023, Howell held the company, which Musk had recently purchased, in contempt for dragging its feet on producing the material. The judge fined the company $350,000. And she wondered aloud whether Musk was impeding Smith’s investigation to ingratiate himself to the former president.

The D.C. Circuit Court of Appeals supported Howell’s decision, but the court’s four conservatives wrote a blistering opinion criticizing the ruling for permitting prosecutors to evade a potential executive privilege fight.

X Corp., represented by prominent attorneys from WilmerHale, contended that the D.C. courts’ decisions failed to protect the company’s First Amendment right to communicate with its customers.

Smith has already obtained voluminous data from Trump’s account, a component of his effort to pinpoint Trump’s actions in the key weeks leading up to the Jan. 6 attack on the Capitol. But X Corp. says the legal issue at the heart of its Supreme Court petition is likely to recur. In fact, the company is mounting a similar battle against nondisclosure orders in an investigation that was made public earlier this year by Chief U.S. District Judge James Boasberg, who similarly ruled against the company.

https://www.politico.com/news/2024/06/04/x-supreme-court-jack-smith-trump-twitter-files-00161521

[ccp]

https://en.wikipedia.org/wiki/Lauren_Windsor

can anyone imagine private conversations among the liberal Justices?

you are going to tell me they would not hold opposite political beliefs?

[Crafty_Dog]

Mitch McConnell: Liberal Bureaucrats Threaten Democracy
The administrative state thwarts the Constitution’s structure for keeping officials accountable.
By Mitch McConnell
June 11, 2024 12:45 pm ET


Democrats like to say that “democracy is at stake” in November. That may be true, but not in the way they think. Across all three branches of the federal government, liberals are working to undermine democratic accountability over their exercise of power. Their philosophy of the administrative state has one unifying thread: the abrogation of democratic legitimacy in deference to unelected bureaucrats.

Let’s start with the Supreme Court. I recently took two of my colleagues to task for improperly interfering in litigation by demanding that Chief Justice John Roberts force Justice Samuel Alito to recuse himself from cases they didn’t want him to hear. As the court has maintained for decades, recusal is a judicial act. It isn’t, as Sen. Sheldon Whitehouse (D., R.I.) said in response to my criticisms, “an administrative matter.”

This misunderstanding suffuses efforts to force ethics “reform” on the high court. Liberals complain that the court’s binding ethics rules lack an “enforcement mechanism” to ensure recusal when they want it. But this complaint would throw the Constitution out the window.

Article III vests “the judicial power” in the court, not in some novel administrative body or committee. It is therefore up to the justices, appointed by the president with the Senate’s advice and consent, to decide whether and how to hear cases.

In other words, the court rightly vests judicial power in its democratically legitimate members as the Constitution requires. Democrats instead want a bureaucracy to “administer” it.

This misbegotten trust in bureaucrats also undermines democratic legitimacy in the executive branch. Attorney General Merrick Garland has appointed three different “special counsels” who operate outside the normal chain of command at the Justice Department to ensure prosecutorial “independence.”

I don’t doubt Mr. Garland’s sincerity that moving prosecutors outside the chain of command makes them “independent.” The problem is the underlying assumption that prosecutors should be independent at all. Such an arrangement insulates them from democratic accountability.

The president is the sole repository of “the executive power” under Article II. When it comes to prosecutions, that power is exercised through an attorney general who is selected by the president and subject to Senate confirmation.

What gives federal prosecution legitimacy is that it is vested in an elected branch of government. Up and down the chain of command in the Justice Department, decisions are, and should be, made by people responsive to the president and Senate.

It might seem that prosecutions with acute political consequences would challenge this legitimacy. The solution, however, isn’t to outsource the political decisions to a prosecutorial bureaucrat. The buck stops with the attorney general because he, through the president, is accountable to voters. Liberals seem to struggle with this reality.

Unfortunately, we see this dynamic in the legislative branch, too. Soon, in Loper Bright Enterprises v. Raimondo, the Supreme Court will address the problem of Chevron deference, the idea that if a federal agency argues a statute is “ambiguous” it can fill in the legislative blanks.

Former Solicitor General Paul Clement observed during oral argument that while Chevron deference might have been well-intended when the court adopted it in 1984, in practice it has given Congress an incentive to leave the hard work of legislating to bureaucrats.

Article I, in contrast, entrusts Congress with “all legislative power.” As with the president’s executive power and the Supreme Court’s judicial power, only Congress has legislative power. And yet for decades, Congress has been content to outsource that power to an administrative state that relies on Chevron to defend its power grabs in court. This is why I filed a brief in support of overturning Chevron deference.

Liberals disagree. Mr. Whitehouse also filed a brief and, consistent with his view that bureaucrats should usurp the judicial power, argued that they should continue to usurp the legislative power too. You see, “the purported ‘problem’ ”—Chevron deference—“is actually a value for the general public.”

The Constitution vests each branch of the federal government with an exclusive power, responsive to the people in elections. In each branch, liberals seek to remove that power from democratic accountability and vest it in unelected bureaucrats. This practice might come from a good-faith trust in “experts,” or a sincere belief that sound policy is too valuable to risk in elections. But at its core, it is a rejection of democratic accountability in favor of the administrative state.

I, for one, think we should continue working to reinforce the Constitution and the trust it places in the American people.

Mr. McConnell, a Kentucky Republican, is Senate minority leader.

[ccp]

The supposed "gotcha" moment:

https://www.msn.com/en-us/news/politics/opinion-capitol-vapors-the-laughably-fake-outrage-over-justice-alito/ar-BB1o9XSR?ocid=msedgntp&pc=DCTS&cvid=d614e8f926be4d099486d61dffc5d102&ei=12

[Body-by-Guinness]

Those seeking to abrogate constitutional protections by extra-constitutional means are forever seeking ways to nickel, dime, and hassle law abiding gun owners, retailers, and manufacturers (ORM). In this instance “Docs agains Glocks” sought standing so they could bring action against ORMs; Kavanaugh shot them down:

Justice Kavanaugh Denies Standing For Docs Against Glocks
The Volokh Conspiracy / by Josh Blackman / Jun 13, 2024 at 9:16 PM
[Doctors cannot claim an injury to challenge gun control laws because their patients may be affected by gun violence.]

In 2011, Florida enacted a law that restricted when doctors could ask their patients if they owned a gun. The sentiment behind the law was that doctors, as a whole, were hostile to gun rights, and could not be trusted with this power. The so-called Docs v. Glocks law, however, did not survive. In 2017, the en banc Eleventh Circuit ruled that the law violated the First Amendment and violated Due Process (there were two majority opinions).

I thought of that case today while re-reading Justice Kavanaugh's standing analysis in FDA v. Alliance for Hippocratic Medicine. Imagine that some doctors who are hostile to gun rights sought standing to challenge some sort of gun control policy. The basis of their injury would be that with fewer restrictions on firearms, their patients are more likely to show up in the emergency room. I'm sure elite medical journals could pump out studies showing how that is a predictable, non-attenuated chain of consequences. That argument might have worked yesterday. But not today. AHM slammed that door shut:

In any event, and perhaps more to the point, the law has never permitted doctors to challenge the government's loosening of general public safety requirements simply because more individuals might then show up at emergency rooms or in doctors' offices with follow-on injuries. Stated otherwise, there is no Article III doctrine of "doctor standing" that allows doctors to challenge general government safety regulations. Nor will this Court now create such a novel standing doctrine out of whole cloth.

Consider some examples. . . . The government repeals certain restrictions on guns—does a surgeon have standing to sue because he might have to operate on more gunshot victims? The answer is no: The chain of causation is simply too attenuated. Allowing doctors or other healthcare providers to challenge general safety regulations as unlawfully lax would be an unprecedented and limitless approach and would allow doctors to sue in federal court to challenge almost any policy affecting public health.4

I don't know if Justice Kavanaugh was thinking about Docs v. Glocks. But he is wont to reach out to decide issues that are not present. And I think this path for standing is foreclosed.

The post Justice Kavanaugh Denies Standing For Docs Against Glocks appeared first on Reason.com.

https://reason.com/volokh/2024/06/13/justice-kavanaugh-denies-standing-for-docs-against-glocks/