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

[Crafty_Dog]

BD
"The Tennessee law, that was the origins of the question at hand, was passed after the Occupy folks began their settlement.  It targets them."

GM
"So? Most states didn't have a law banning the disruption of funerals until Westboro started their B.S. Now most states do, after legislators recognized a problem. The laws don't state "Westboro Baptists may not disrupt funerals", the laws forbid ANYONE from disrupting a funeral, no matter what their agenda might be. Sad that such a law might be needed in the first place.

"Ex post facto doesn't apply to this issue. Say you were 18 when the drinking age in your state changed to 21. You couldn't be charged for your possession of alcohol/consumption BEFORE the law went into effect, but if an officer contacts you with a beer in your hand the day AFTER....."

MARC:  GM's point here seems to me simple, logical, and persuasive.  Given the lack of prescience of the lawmaking process  I am willing to hazard a guess that MOST laws are passed AFTER some sort of problem has manifested itself and once passed from that point in time FORWARD the proscribed behavior is prohibited.

[Body-by-Guinness]

Reflections on the Oral Argument in United States v. Jones, the GPS Fourth Amendment Case
from The Volokh Conspiracy by Orin Kerr
(Orin Kerr)
I was at the Supreme Court this morning for the oral argument in United States v. Jones, the GPS case. In this post, I want to blog my reactions to the argument: I’m going to update the post as I go, so general readers can get the important stuff first at the top and then general readers can get the rest down the page.

1) My basic reaction was that the outcome was too close to call. The Justices gave both sides a very hard time, and few Justices tipped their hand. The Justices pushed Michael Dreeben (arguing for the United States) on the consequences of his argument: If the Government was right, they noted, then the government can install a GPS device on all the Justices’ cars and watch them, too, along with everybody else. They pushed Steve Leckar (arguing for Jones) on the difficulty of identifing a clear Fourth Amendment principle to distinguish visual surveillance from GPS surveillance. The votes were hard to count, but if you had to summarize a reaction of the Court as a whole, I would say that the Justices were looking to find a principle to regulate GPS surveillance but unconvinced (at least as of the argument) that there was a legal way to get there without opening up a Pandora’s Box of unsettling lots of long settled practices.

2) The Justice who most clearly showed his cards was Justice Scalia. Justice Scalia made clear that he would overrule Katz v. United States; make common law of trespass the test for what is a search; and say that the installation of the device was a search because it was a technical trespass. Even if Katz can’t be overturned, Scalia indicated, at the very least the common law of trespass should be a floor of Fourth Amendment protection: Katz should be allowed to go beyond the original Fourth Amendment but not erode it. Cf. Kyllo v. United States. At the same time, Justice Scalia made equally clear that he thought the use of the device after installation was not a Fourth Amendment problem. What is invasive and scary isn’t a search, Scalia emphasized, and the kind of line-drawing as to when use of a GPS device should be allowed is quintessentially a legislative question. So Scalia is on board for saying that installation of the device is a search, but no more. (As an aside, it’s not at all clear that the original public meaning of the Fourth Amendment operated on a common law of trespass principle. Warren Court opinions liked to describe pre-Warren Court decisions as adopting such a principle, and that has led many to believe that the Fourth Amendment underwent a transition in the 1960s from protecting property to protecting privacy. But if you go back and read the cases, that narrative — pushed most strongly by justice Brennan in Warden v. Hayden — is plainly inaccurate. The early cases usually rejected common law trespass as a principle, much as post–Katz cases do. More on that in a future post.)

3) Other justices gave a more mixed reaction to Justice Scalia’s idea of regulating the installation of the device as a search under the technical trespass doctrine. Justices Alito and Kagan seemed particularly skeptical. Both pointed out that this solution wouldn’t necessarily work in the long run: If technology advanced and the government created a new surveillance tool that could obtain the same information without a technical trespass, then the government would have the same power as before. Alito and Kagan also both pressed Leckar on whether it would be a search or seizure to attach an inert device to a suspect’s car (that is, a device with no monitoring system). Leckar conceded that this would be a different case, which drew a comment from Justice Kagan that Leckar was really focused on the use of the GPS device, not the installation.

4) Justice Breyer’s reaction was about as far from Scalia’s as you could get. Justice Breyer didn’t buy the technical trespass doctrine, and he wanted to bypass the question of what is a “search” or “seizure” and just ask what is “reasonable.” Breyer seemed to think that the earlier decisions like Karo and Knotts had been about that, as well, which was mistaken: Those cases were primarily about what is a “search,” not when a search is reasonable. (It’s true that the test for what is a search is whether the government conduct violated a “reasonable expectation of privacy,” but that’s a term of art used interchangeably with the phrase “legitimate expectation of privacy” — the word “reasonable” in that term of art is very different from the general balancing test of reasonableness that applies once a search or seizure has been identified.) Anyway, Breyer was therefore looking for some sort of way to say when GPS monitoring was reasonable and desirable, rather than what was a constitutional search or seizure. I don’t think he really found an answer that satisfied him on either side.

5) Justice Sotomayor and Ginsburg were both very worried about the Big Brother implication of using GPS devices: I counted 5 or so references to Orwell’s 1984. At the same time, both were struggling to identify exactly what the constitutional rule was that would regulate GPS monitoring. Merely watching a suspect in a city street was obviously not a search or seizure. Does that change if you switch to video cameras? Lots of cameras? Beepers? GPS devices? Where do you draw the line? Counsel for Jones suggested that the Court could say that this case was a search or seizure but leave open the other cases, but the Justices wanted clearer answers than that. And there was some frustration at the inability to draw constitutional lines from the defendant’s side: At one point Justice Sotomayor responded to one of the defense’s proposed lines by proclaiming, “What an unworkable rule tethered to no principle!”

6) The “mosaic theory” adopted by the D.C. Circuit didn’t seem to go anywhere with the Justices. I think the only Justice who mentioned it during Dreeben’s argument was Chief Justice Roberts. Roberts’ question was straight out of the defense-side briefs, arguing that GPS surveillance over a long period allowed the government to assemble a mosaic, and was much cheaper and easier for the government than the beeper surveillance in Knotts. At the same time, I couldn’t tell if Roberts was asking those questions just to see Dreeben’s response or because he genuinely was sympathetic to the defense side. The mosaic theory came up a bit during Leckar’s argument, but the Justices were mostly very skeptical: As Justice Scalia proclaimed, echoing Judge Sentelle below in his dissent from denial of rehearing en banc, “100 times zero is still zero.” Leckar took the hint and didn’t press the mosaic theory much during his argument.

7) One of the major questionsin the case is how the Justices view the prospect of future statutory regulation. It was clear that a lot of the Justices were deeply worried about the 1984 scenario, and were looking to find a sensible way to regulate GPS surveillance with a constitutional rule if it’s necessary to avoid 1984. Arguing for the government, one of Dreeben’s responses was that these were just the kind of problems that Congress could deal with: If everyone is spooked by the possibility of GPS surveillance, then that is all the more reason for the elected branches to act. It was hard to know exactly what the Justices thought of this: They know they can’t control if Congress acts. If they decide that the Fourth Amendment doesn’t apply because they expect statutory regulation to deal with this, what happens if they are wrong? I tend to think that it’s very likely that Congress would act pretty swiftly to regulate GPS surveillance for the reasons explained in this article, but it’s an question of guessing what the future might look like and I suspect different Justices will look at it differently.

http://volokh.com/2011/11/08/reflections-on-the-oral-argument-in-united-states-v-jones-the-gps-fourth-amendment-case/

[Crafty_Dog]

BBG:

Thank you very much for finding that thoughtful piece of analysis.  The only articles I saw about the oral arguments were very unsatisfying and so regretfully I did not post them.

This case is of tremendous importance (indeed, may I ask you to post it on the 4th Amendment/Privacy thread as well?) and I hope you will continue to be on the lookout for us.

[G M]

http://volokh.com/2011/11/13/court-rejects-occupy-sacramentos-challenge-to-ordinance-barring-park-use-between-11-pm-and-5-am/

Court Rejects Occupy Sacramento’s Challenge to Ordinance Barring Park Use Between 11 pm and 5 am

Eugene Volokh • November 13, 2011 1:58 am


The case is Occupy Sacramento v. City of Sacramento (E.D. Cal. Nov. 4, 2011) (just posted a few days ago on Westlaw); technically, the decision holds that Occupy Sacramento hasn’t shown a likelihood of success on the merits — the standard used when plaintiffs seek a temporary restraining order — but the court’s reasoning suggests that the judge considered the merits and concluded that Occupy Sacramento’s claims were unsound. The decision seems generally quite right to me, given Clark v. Community for Creative Non-Violence (1984), which upheld a similarly content-neutral ordinance banning sleeping in the park.

The city ordinance does leave government officials some discretion in extending the hours if “(1) such extension of hours is consistent with sound use of park resources, (2) the extension will enhance recreational activities in the city, and (3) the extension will not be detrimental to the public safety or welfare.” (The plaintiffs had not asked for an extension as of the time they went to court.) But, as the court pointed out,
 Thomas v. Chicago Park Dist. (2002), held (among other things) that a content-neutral demonstration permit ordinance was constitutional even if it left government officials with similarly limited discretion. If there was evidence that the officials exercised their discretion in a content-discriminatory way, that would be unconstitutional, but absent such evidence the limited discretion to waive the ordinance requirements doesn’t render the ordinance unconstitutional.

[JDN]

Are public pensions protected by the Constitution?

http://www.latimes.com/news/local/la-me-cap-pensions-20111114,0,1935002.column

[G M]

Are public pensions protected by the Constitution?

http://www.latimes.com/news/local/la-me-cap-pensions-20111114,0,1935002.column

I very much doubt it. I'm not banking on it.

[Crafty_Dog]

Interesting questions presented.

I wonder how the impairment of contract issues interface with bankruptcy reorganization law?

[DougMacG]

All the US constitution says about bankruptcy is: [As a power of congress]  'To establish...uniform Laws on the subject of Bankruptcies throughout the United States'.  Article 1, Section 8, Clause 4

Most of the bankruptcy law was written back when states were sovereign, a very long time ago.  That needs to be updated with a provision for bankruptcy for state government as we have for municipalities.  Someone might contact Sens. Feinstein and Boxer about getting this done.  The laws governing these state bankruptcies across the nation need to be uniform.

[G M]

http://hotair.com/archives/2011/11/22/aclu-occupy-mn-has-right-to-unrestricted-use-of-public-property-and-free-electricity-too/

ACLU: Occupy MN has right to unrestricted use of public property — and free electricity, too
 

posted at 10:05 am on November 22, 2011 by Ed Morrissey
 





Here in Minneapolis, our local Occupy movement hasn’t made national news, thanks to a smaller turnout and relatively little outrageous behavior.  However, the ACLU has now jumped into the fray, suing Hennepin County (Minneapolis) for enforcing rules and laws on the use of public property where the Occupiers have camped.  Specifically, the ACLU wants Hennepin County to grant unrestricted use indefinitely to the Occupiers on the basis of free speech … which apparently includes free electricity, too (via Rob Port):
 

The American Civil Liberties Union of Minnesota sued Hennepin County on Monday on behalf of OccupyMPLS, the protest group camping out on the Government Center Plaza in downtown Minneapolis in defiance of county rules.
 
The ACLU suit contends that those rules, which forbid tents and electricity, and “certain unwritten procedures enforced by the county” violate the demonstrators’ free speech rights. …
 
The suit asks that new rules restricting the use of chalk, electricity and tents be declared unconstitutional. The plaintiffs are also seeking an injunction against the rules, and they want the county to provide electricity for the protesters. It also asks that officials stop giving trespass notices to protesters who build temporary shelters or use chalk to express their views.
 
The county has said the plaza is not designed for long-term occupation and that the restrictions adopted earlier this month are needed because of health and safety concerns and increased security costs.
 
There may be a legitimate political gripe about the promulgation of rules in response to the Occupy protests.  However, the county had not imagined that anyone would claim the right to squat indefinitely on public land as a form of political protest, and the grounds are in use every day for all members of the public.  The fact that these individuals hold signs and chant rhyming slogans give them no special grant to use public property in a way that creates a semi-permanent obstruction for everyone else’s use, and that most especially includes chalking up the sidewalks and running power cables all over the place, a potential safety hazard for pedestrians and a potential fire hazard under some circumstances.
 
The ACLU’s demand that the county supply the electricity is just … perfect.  What better statement for this movement to make than to demand that county taxpayers buy the electricity that will keep this obstacle in business for a while longer?  They want free education, free electricity, and now free housing of a sort, although they weren’t successful in getting it:
 

Two people arrested in Minneapolis during a weekend protest against Wall Street remained in custody Sunday, while a video posted on the Occupy Minnesota website showed an officer appearing to use his squad car to push one of the men out of the way during the demonstration.
 
The men were arrested Saturday at a foreclosed home that was being occupied by protesters. One was arrested on charges of burglary and trespassing, while the other was arrested for obstruction of justice after refusing to move for police. A video posted on the group’s website shows the man standing in front of a squad car, as an officer slowly begins driving the car forward — causing the man to be pushed back. …
 
About two dozen protesters returned to the foreclosed home on Sunday as fire officials boarded up the house. Police were on hand, but Sullivan said the protesters were peaceful and there were no arrests.
 
We had heard that the Occupiers would start squatting in foreclosed homes as a way to beat the cold out in the open at “People’s Plaza,” but there is one big difference that they apparently didn’t take into consideration.  The county can impose rules on the use of public property and cite people who violate them, but breaking into private property is burglary — and that results in more than just a citation and a fine.  It will be much more difficult to explain away a burglary conviction than one for disorderly conduct.
 
Free homes, free electricity, unrestricted use of public property, and waiving all the rules … this isn’t a political movement.  It’s the equivalent of a temper tantrum from a two-year-old.  This is the Freeloader Movement.
 
Meanwhile, over in Boston, we find out that free speech is a quality reserved for those animals more equal than others:
 

From a respectable distance on the sidewalk on Atlantic Avenue, I observe a Boston EMS technician patiently trying to coax the woman out of her tent to take her to the hospital. Two cops look on. The woman obviously has some mental health issues.
 
Out of the blue, a 20-something female occupier with a disgusted look on her face comes running up to me, gets in my face and yells, “Get out of here. You have no right to watch.” I say nothing and instead walk away from her. But I continue to observe the EMS tech and cops from another vantage point doing their jobs. …
 
A few minutes later, she returns. “I told you to get out of here,” she screams at me. “I won’t say it again. What’s wrong with you? It’s none of your business.”
 
This time I respond. “I’m a citizen of the United States, I am on public property, and I am doing nothing wrong,” I tell her. She fumes, but goes away.
 
Then some older occupier, pretending to sweep the sidewalk, sweeps a whole bunch of debris up on to my pants. It was hard, but I ignore him.
 
Other people are now watching EMS do their job as well, with one young guy taking pictures. Another occupier comes over and, in a threatening voice, orders him to stop. “Bite me,” the shutterbug calmly tells the occupier. “Last time I looked, this is America pal.” I say to myself, “Way to go kid!”
 
For a “movement” that takes place on public property, the Occupiers seem to have a real problem about transparency.  I wonder what else they’re hiding, in Boston and around the country.

[bigdog]

I wonder why this isn't explored further.

"There may be a legitimate political gripe about the promulgation of rules in response to the Occupy protests."

[G M]

Probably because until not too long ago, public camping/defication wasn't a problem in American cities.

[Crafty_Dog]

You crack me up GM.

I would add that urban campers (a.k.a. the homeless) have presented similar issues when they settle in to a particular area.  The complexity of the human realities can be considerable.  What to tell a person who has no place to call his own?  OTOH a concentration of such people tends to establish a sense of territorial rights that utterly conflicts with the concept of public rights in the public space which they inhabit AND presents serious sanitation issues.  For example I remember reading in the LA Times (NOT a hardass right wing publication by any means!) that hosing down the homeless areas of the excrement etc. led to the detectable presence of human viruses in the ocean in the LA River, indeed well out into the ocean.  Imagine the health issues of the bacteria and viruses in the areas of their encampments.

OTOH OWS presents a much simpler questions in that the "urban camping" is entirely voluntary and these people DO have places of their own. 

[G M]

I just want OWS to meet the same standards the TEA party was held to.

Same for everyone else of any political agenda that wishes to protest.

One standard.

Try hosting a child's birthday party in a New York City park for more than 20 people and see what fees and paperwork is involved.

[bigdog]

Probably because until not too long ago, public camping/defication wasn't a problem in American cities.

Yep, people camping in public spaces in urban areas is unheard of!!!!!! 

From 2008: http://www.msnbc.msn.com/id/26776283/ns/us_news-life/t/hard-times-tent-cities-rise-across-country/

"Homeless people and their advocates have organized three tent cities at City Hall in recent months to call attention to the homeless...."

From 2010: http://www.dailymarkets.com/economy/2010/11/19/tent-cities-pop-up-everywhere-in-the-u-s-as-homelessness-skyrockets/

From the Civil Rights Era: http://orig.jacksonsun.com/civilrights/sec4_tent_city.shtml

And: http://www.childrensdefense.org/about-us/our-history/poor-peoples-campaign.html

"Thousands of people from all over the country camped on the National Mall in Washington, D.C.  They called their camp "Resurrection City." At its peak, the camp held approximately 7,000 people."

[G M]

Ok, so was it legal to camp in those cities? Was the 1st amendment penned with the intent of protecting public sh*tting? Would the founders look fondly on the "Occupy Unconsenting Orifices" movement?

[bigdog]

Your claim was that urban camping was new.  It isn't.  It isn't as though the idea just crept up on city officials.  They had plenty of time to pass laws that were not passed simply because OWS and its offshoots began. 

[G M]

Your claim was that urban camping was new.  It isn't.  It isn't as though the idea just crept up on city officials.  They had plenty of time to pass laws that were not passed simply because OWS and its offshoots began. 

Most every state has laws and most every city has statutes that forbid or regulate "urban camping" that predate "Commie Rapefest-2011". 

[bigdog]

Your claim was that urban camping was new.  It isn't.  It isn't as though the idea just crept up on city officials.  They had plenty of time to pass laws that were not passed simply because OWS and its offshoots began. 

Most every state has laws and most every city has statutes that forbid or regulate "urban camping" that predate "Commie Rapefest-2011". 

And yet you posted an article with this little line: "There may be a legitimate political gripe about the promulgation of rules in response to the Occupy protests."  So, what were the rules promulgated in response to Occupy?

[G M]

Depends on the jurisdiction. Do you doubt most every jurisdiction already had some applicable law on the books?

Do you think public sh*tting was the intent of the 1st amd. when quill was first put to parchment?

[Crafty_Dog]

BD:

Back during the summer I worked for the anti-trust division of the Federal Trade Commission (what a long strange trip my life has been!  ) I remember there was a case I had to research where Section 7 of the Clayton Act was used to undo a merger that had been accomplished some 50 or 60 years earlier (Dupont? GM?  I forget).  The key phrase was that "laches does not run against the government" or something like that.

I bring this up in light of your pointing out that the urban camping was not unknown previously and that therefore the government(s) in question could have passed legislation prior to OWS activities.  Be this as it may, this does not convert recent legislation into laws of attainder.  Yes?

[bigdog]

Guro,
     I am not sure why (lack of sleep, too much Thanksgiving food, inabilty to process the wording), but I don't understand your query.  Could you clarify, please, at your convenience?

[Crafty_Dog]

You certainly are more current in your life with the use of legal terminology than am I, but IIRC a bill of attainder is a law aimed against a particular individual.  This is, if I understand correctly, the essence of you argument against these laws-- that they were written with OWS in mind (While certainly OWS is not AN individual, the general principle would seem to be the same) and that the govt could have and should have written the laws before OWS, but now that OWS is in play that the government is estopped from passing a law.

This assertion I am challenging with the principle from equity cited by the Supreme Court in the case I have in mind but whose name I forget: Laches does not run against the government because in this the government respresents the people and the people do not lose their rights due to inaction by the government.

[bigdog]

I see.  My apologies for my confusion.  A couple of things:

1.  ''Bills of attainder . . . are such special acts of the legislature, as inflict capital punishments upon persons supposed to be guilty of high offences, such as treason and felony, without any conviction in the ordinary course of judicial proceedings. If an act inflicts a milder degree of punishment than death, it is called a bill of pains and penalties. . . . In such cases, the legislature assumes judicial magistracy, pronouncing upon the guilt of the party without any of the common forms and guards of trial, and satisfying itself with proofs, when such proofs are within its reach, whether they are conformable to the rules of evidence, or not. In short, in all such cases, the legislature exercises the highest power of sovereignty, and what may be properly deemed an irresponsible despotic discretion, being governed solely by what it deems political necessity or expediency, and too often under the influence of unreasonable fears, or unfounded suspicions.'' 1701 The phrase ''bill of attainder,'' as used in this clause and in clause 1 of Sec. 10, applies to bills of pains and penalties as well as to the traditional bills of attainder. 1702  (http://caselaw.lp.findlaw.com/data/constitution/article01/47.html)

2.  In my most recent posts, I was illustrating that GM's contention that public camping was an unknown until recently was false.  Based on the extensive history of public camping, yes, there could have been legislation passed that was not aimed at a particular group. 

3.  People lose their liberties by actions of the government.  That is my contention here, and that, by the way, is often the contention of you, GM, and several other contributors to this forum.  However, each of us (or at least me versus many others) seems to have a different view of which liberties are worth protecting and when.

4.  If public camping,  and "public sh*itting" is so bad, out of hand, then why do so many people camping out for concert tickets or Black Friday deals not raise your (plural) hackles?  In some cases, it may be that the Black Friday camping sites are private property.  However, the laws of the city, state and nation must still be followed on private property (smoking ordinances; handicapped access; hiring practices; etc.).  Moreover, it someone whipped out their d!ck for all to see while waiting in line, that would surely be indecent exposure, defined as "Indecent exposure laws in most states make it a crime to purposefully display one's genitals in public, causing others to be alarmed or offended" (http://criminal.findlaw.com/crimes/a-z/indecent_exposure.html).  Also, there are many instances in which these camping sites occur on public, city owned sidewalks or city parking lots, etc.  I think, or at least I hope, that we can all agree that liberties should not depend on the economic activities that they accompany.

5.  Moreover, some seem to want to note that rapes and other acts of violence that occured with OWS and the off shoots.  Agreed.  But, acts of violence also occured with Black Friday shoppers, some of whom may also have been camping out (based on the early times in the day that some of these incidents took place).  Do we ban shopping?  Many bar patrons fight or engage in sexual violence.  Do we ban drinking?  People who want to do these things will find a place to do them.  How do we, as a group on the forum, feel when people note the misuse of firearms and then leap to say all firearms should be banned?  (Please note that this is not an attempt to dismiss the miscreants in OWS, simply to say that the recommendations are not universally upheld.)

[Crafty_Dog]

BD:

You are a very bright guy, but I confess I am not fully following your logic.  In the give and take of life in a (still somewhat) free society, lots of stuff gets let slide.  Perhaps a relevant concept would be the law of trespass.  For example, someone comes on my property without permission.  If I don't complain, there is no problem.  If I do complain, then I have the right to eject them and/or have the authorities do so.  Would this not be the case with people camping out the night before Black Friday?

I suspect public defecation has been a no-no for quite some time. 

And yes there have been incidents, or perhaps even episodes, of "public camping" over the years, though nothing like OWS with its weeks/months of taking over public parks and such comes to mind (maybe IIRC Pershing clearing out a Hooverville in the 1930s?).  Should existing local ordinance have a gap in it, if I understand your argument correctly you are asserting that the local authorities are estopped from passing an ordinance to deal with an existing problem if the problem has a political component.

I challenge this.  It is not that OWS holds a particular political POV, it is that, regardless of its POV it is taking over public property, creating a mess and a health hazard, obstructing others from the use of the public common, and not moving on when asked to do so.

In conclusion, I see no inconsistency in my position whatsoever.

[Crafty_Dog]

PS:  "People lose their liberties by actions of the government."-- only under Due Process.  More to the point I am making here, under the equitable doctrine of laches (working from memory here!) the point is that government is constituted to PROTECT and PRESERVE people's rights and the people do not lose these rights when the government has failed to act previously.  Reasoning by analogy, while an easement (laches) may be created against property rights by continued uncontested trespass, this concept does not apply to the rights of the people (e.g. to enjoy the use of a public park) due to the government's previous failure to do so.

[Body-by-Guinness]

Interesting meditation on originalism and the 14th Amendment:

The original meaning of the 14th Amendment regarding interracial marriage
from The Volokh Conspiracy by David Kopel
(David Kopel)
Over at Balkinization, Andrew Koppelman (Northwestern) has an interesting and thoughtful post on the state of originalism. Synthesizing analysis by Jamal Greene and Jack Balkin, Koppelman writes, “Originalism is fundamentally about a narrative of rhetorical self-identification with the achievements of a founding historical moment. That is the real basis of its power. An originalist argument will be powerful to the extent that can persuade its audience that it can keep faith with that identification.”

Thus, “Originalist argument is an artifact designed to recall the Constitution’s origin and connect what we are doing now with that origin. Once this functional definition of originalism is understood, it follows that the range of possible original arguments is quite broad. It is not, however, infinite.” So, argues Koppelman, the fact that originalists differ among themselves in many important details about what “originalism” really is, is not a fatal flaw. Simiilarly, there are many different things called “aspirin” (e.g., Excedrin, generic products, St. Joseph’s children’s aspirin, etc.), but they all contain acetylsalicylic acid, and they all have a generally similar function. Which particular one you use at a given time will depend on the particular purposes for which it is needed.

I do want to quibble, though, with one particular legal history claim that Koppelman makes: “Thus originalists struggle with the problem whether the general purpose of the Fourteenth Amendment, to mandate the legal equality of blacks, should trump the framers’ specific intention to permit school segregation and miscegenation laws.”  Michael McConnell and Randy Barnett have written on the school segregation issue, but I’d like to add something on miscegenation. I don’t think that the historical record unambiguously supports the claim of a specific intent in the 14th Amendment to allow the continuation of laws against interracial marriage.

We do know for certain that one very specific intention of the 14th Amendment framers was to provide a solid constitutional foundation for the Civil Rights Act of 1866. According to the Act: “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, . . . as is enjoyed by white citizens. . .”

Early exposition by courts is one source of original public meaning. (Although this source is not always guaranteed to be reliable. See, e.g., the Slaughter-House majority’s dicta). In 1872, the Alabama Supreme Court ruled that the state’s 1866 constitutional ban on miscegenation  violated the “cardinal principle” of the Civil Rights Act and of the Equal Protection clause. Burns v. State, 48 Ala. 195 (1872). That same year, the Texas Supreme Court unanimously ruled that  the 14th Amendment’s Privileges or Immunities clause and Equal Protection clause had “abrogated” the old state law against miscegenation Bonds v. Foster, 36 Tex. 68 (1872). As detailed in Peggy Pascoe’s book, What Comes Naturally: Miscegenation Law and the Making of Race in America (2010), in the years after the Civil War, eleven states repealed their bans on interracial marriage.

It was the Indiana Supreme Court  that figured out the way to evade the clear statutory language about the equal right of contract. According to the court, marriage is  “more than a mere civil contract”; it is an institution fundamental to society. The Indiana court insisted at length that the 14th Amendment had not limited the traditional police power of the states. If Congress could ban states from imposing racial discrimination in the right to enter a marriage contract, then Congress would (supposedly) have the power to legislate on all aspects of marriage. State v. Gibson, 36 Ind. 389 (1871).

I don’t find the Indiana court’s 1871 reasoning persuasive, and, apparently, neither did the Alabama and Texas Supreme Courts in 1872. But courts cannot stand forever against the sustained will of the electorate. After four losses, the proponents of anti-miscegenation won on their fifth try in the Alabama Supreme Court. When the courts in the various states finally acquiesced to anti-miscegenation laws, Gibson was the essential citation, because it came from a state where slavery had never legally existed. The Texas intermediate Court of Appeals provided the legal reformulation that marriage was “status” and not “contract,” and was therefore not covered by the Civil Rights Act: “Marriage is not a contract protected by the Constitution of the United States, or within the meaning of the Civil Rights Bill. Marriage is more than a contract within the meaning of the act. It is a civil status, left solely by the Federal Constitution and the laws to the discretion of the states, under their general power to regulate their domestic affairs.” Frasher v. State, 3 Tex.App. 263, (Tex. Ct. App. 1877). (The regressive Frasher decision is one more data point in support of the observation in Henry Sumner Maine’s great 1861 book Ancient Law: “we may say that the movement of the progressive societies has hitherto been a movement from Status to Contract.” Maine’s book elaborates in great detail why marriage law fits this paradigm.)

By the time that Plessy v. Ferguson was decided in 1896, the Supreme Court majority, which was willfully oblivious to contemporary social reality (e.g., if blacks consider a segregation mandate to be a “a badge of inferiority,” that is “solely because the colored race chooses to put that construction upon it”) , was also lazily ignorant of legal history: “Laws forbidding the intermarriage of the two races may be said in a technical sense to interfere with the freedom of contact, and yet have been universally recognized as within the police power of the state.” The sole citation for this allegedly “universal” recognition was State v. Gibson. The Court was right that as of 1895, miscegenation laws were constitutionally safe, but the Court seemed quite unaware that during the first years when the 14th Amendment and the Civil Rights Act were the law of the land, the issue was in dispute.

Although the late Professor Pascoe’s book is suffused with critical race/gender theory, readers who find such theories useless will still find Pascoe’s book to be enormously useful. It is an excellent legal history of anti-miscegenation laws and cases, and not just during Reconstruction. You will learn about the national panic to spread such laws during the early 20th century because the black boxer Jack Johnson (who defeated a string of opponents who were billed as “the Great White Hope”) notoriously consorted with white women; how courts struggled with interpreting miscegenation laws in the West (which were mainly aimed at Asians, and which raised questions such as whether a ban on white marriage to “the Mongolian or Malay races” applied to Filipinos); the NAACP’s political opposition to new miscegenation laws coupled with its great reluctance to mount legal challenges to existing ones; and the extremely risky litigation (not endorsed by NAACP) which led to the landmark 1948 California Supreme Court Perez v. Lippold decision (won mainly on arguments of void for vagueness, the fundamental unenumerated right to marry, and First Amendment  free exercise of religion, rather than a categorical attack on all racial discrimination).

Justice Carter’s concurrence in Perez is a good illustration of the main thesis of Koppelman’s post, and of the point made by the second Justice Harlan (and also by Jack Balkin) that our “tradition is a living thing,” in which our national understanding of the original meaning can be deepened by new experiences. Rebutting respondent’s collection of social scientists who contended that race-mixing was destructive to the health of the white race, Justice Carter quoted some essentially similar claims from Hitler’s Mein Kampf’. Justice Carter continued: “To bring into issue the correctness of the writings of a madman, a rabble-rouser, a mass-murderer, would be to clothe his utterances with an undeserved aura of respectability and authoritativeness. Let us not forget that this was the man who plunged the world into a war in which, for the third time, Americans fought, bled, and died for the truth of the proposition that all men are created equal.” And so, “In my opinion, the statutes here involved violate the very premise on which this country and its Constitution were built, the very ideas embodied in the Declaration of Independence, the very issue over which the Revolutionary War, the Civil War, and the Second World War were fought, and the spirit in which the Constitution must be interpreted in order that the interpretations will appear as ‘Reason in any part of the World besides.’”

http://volokh.com/2011/12/05/the-original-meaning-of-the-14th-amendment-regarding-interracial-marriage/

[bigdog]

First of all, Guro, thank you.  I appreciate your view of my intelligence.

Public sidewalks are not private property.  And, even if there is trespass without complaint, that doesn't mean that criminal action can take place.  (If I do not complain about meth producers, this does not make their actions legal.)  If the actions that take place from Black Friday shoppers or those who wait in line for concert tickets, such as obstructing public sidewalks, I've never heard any complaints.  But now that there is political movement doing the same thing, albeit for a duration, people are up in arms.

As for laches, there seems to be a gray area.  According to http://dictionary.law.com/Default.aspx?selected=1097 laches is "the legal doctrine that a legal right or claim will not be enforced or allowed if a long delay in asserting the right or claim has prejudiced the adverse party (hurt the opponent) as a sort of "legal ambush." Examples: a) knowing the correct property line, Oliver Owner fails to bring a lawsuit to establish title to a portion of real estate until Nat Neighbor has built a house which encroaches on the property in which Owner has title; b) Tommy Traveler learns that his father has died, but waits four years to come forward until the entire estate has been distributed on the belief that Tommy was dead; c) Susan Smart has a legitimate claim against her old firm for sexual harassment, but waits three years to come forward and file a lawsuit, after the employee who caused the problem has died, and the witnesses have all left the company and scattered around the country. The defense of laches is often raised in the list of "affirmative defenses" in answers filed by defendants, but is seldom applied by the courts. Laches is not to be confused with the "statute of limitations," which sets specific periods to file a lawsuit for types of claims (negligence, breach of contract, fraud, etc.)." 

Using the first of these examples, the cities of NYC and LA, at least, for damn sure waited until "Nat Neighbor has built a house."  Months after parks were occupied these cities decided that there was a nuisance. 

I don't understand this: "PS:  'People lose their liberties by actions of the government.'-- only under Due Process."  You have made the argument, with consistency, that people lose their liberties often without the due process ensured by the government.  Isn't this much of your concern with the Obama administration and Supreme Court (Kelo, for example)? 

BD:

You are a very bright guy, but I confess I am not fully following your logic.  In the give and take of life in a (still somewhat) free society, lots of stuff gets let slide.  Perhaps a relevant concept would be the law of trespass.  For example, someone comes on my property without permission.  If I don't complain, there is no problem.  If I do complain, then I have the right to eject them and/or have the authorities do so.  Would this not be the case with people camping out the night before Black Friday?

I suspect public defecation has been a no-no for quite some time. 

And yes there have been incidents, or perhaps even episodes, of "public camping" over the years, though nothing like OWS with its weeks/months of taking over public parks and such comes to mind (maybe IIRC Pershing clearing out a Hooverville in the 1930s?).  Should existing local ordinance have a gap in it, if I understand your argument correctly you are asserting that the local authorities are estopped from passing an ordinance to deal with an existing problem if the problem has a political component.

I challenge this.  It is not that OWS holds a particular political POV, it is that, regardless of its POV it is taking over public property, creating a mess and a health hazard, obstructing others from the use of the public common, and not moving on when asked to do so.

In conclusion, I see no inconsistency in my position whatsoever.

[bigdog]

http://www.c-span.org/Events/Congress-Considers-the-Televising-of-Supreme-Court-Arguments/10737426031-1/

[Crafty_Dog]

Good description of laches.  You say "Using the first of these examples, the cities of NYC and LA, at least, for damn sure waited until "Nat Neighbor has built a house."  Months after parks were occupied these cities decided that there was a nuisance."

Yes, the argument could be made as you do BUT FOR the legal fact that "laches does not run against the government" because were it do so, it would be the rights of "the people", which government was formed to secure, not of the government itself (can we even speak of the govt having "rights"?) which would be lost.

I wish I had the citation for you but it has been 30 years since I read the case, but in the case I have in mind (GM and Dupont were involved IIRC), a merger of some 60 years standing was undone.  The primary arguments proffered were Section 1 and 2 of the Sherman Act (no surprise there) but the argument that won with the Supremes was a secondary argument tossed in as an afterthought-- Section 7 of the Clayton Act.  To the laches argument that the merger had been uncontested for some 60 years, the court responded "Laches does not run against the government."

[G M]

http://volokh.com/2011/12/07/police-are-entitled-to-evict-occupy-boston/

Police Are Entitled to Evict Occupy Boston

Eugene Volokh • December 7, 2011 8:01 pm


So holds today’s Occupy Boston v. City of Boston (Mass. Super. Ct. Dec. 7, 2011) (see this Boston Herald news story): The city’s content-neutral ban on overnight sleeping in parks is consistent with the First Amendment. This seems to me to be the clearly correct result, given the Supreme Court’s decision in Clark v. CCNV (1984), which likewise upheld a ban on sleeping in parks as applied to a tent city demonstration.
 
This is the same result reached as to sleeping bans or overnight presence bans in the Occupy Wall Street case and the the Occupy Fresno case, which I blogged about, and in Occupy Minneapolis v. County of Hennepin (D. Minn. Nov. 23, 2011) (motion for reconsideration denied today) and Occupy Fort Myers v. City of Fort Myers (M.D. Fla. Nov. 15, 2011), which I hadn’t gotten around to blogging about. (The plaintiffs in some of these cases prevailed on other aspects of their challenges, but all their claims of a right to an exemption from the bans on sleeping or overnight presence in the park were rejected.)

[bigdog]

This is an interesting article on laches and the impact of the appellate court decisions on its applicability. 

http://scholar.valpo.edu/cgi/viewcontent.cgi?article=1051&context=vulr&sei-redir=1&referer=http%3A%2F%2Fwww.google.com%2Furl%3Fsa%3Dt%26rct%3Dj%26q%3Dhow%2520does%2520laches%2520limit%2520state%2520goverment%2520%26source%3Dweb%26cd%3D7%26ved%3D0CFAQFjAG%26url%3Dhttp%253A%252F%252Fscholar.valpo.edu%252Fcgi%252Fviewcontent.cgi%253Farticle%253D1051%2526context%253Dvulr%26ei%3DyzzgTpiUNO6IsALwnrTuBg%26usg%3DAFQjCNGtADF1Hv3zL5uuijUJsbn24uE78g#search=%22how%20does%20laches%20limit%20state%20goverment%22

[Crafty_Dog]

BD: I just skimmed that so please forgive me if I have missed some points, but herewith my observations

a) First and foremost, the question presented is inapplicable to the point I am making.  Are we agreed on this?

b) I don't have the separation of powers problem that some of the circuits do.  Isn't this a matter of remedy of law and/or equity?  To borrow the analogy of one of my professors (the wonderful Willis Reese, who was the Reporter for the Restatement of Conflict of Laws IIRC and/or maybe another one too)  I may have the right under the law to play the saxophone, but under the equitable doctrine of nuisance I do not have the right to play it under your bedroom window at 0300.   What is the difference of this from saying that that statutorily provided term for the statute of limitations does not foreclose the equitable doctrine of laches from being applied to the behavior for which it is intended?


PS:  Upon reflection, I am going to guess that the Supreme Court case of which I have been thinking was US v. GM (or GM v US) and would have been between 1917 and 1980; though I would guess it to have been decided in the 1960 or 70s.

[bigdog]

Here is a report on Mitch McConnell's view of the "dissolution" of the Electoral College.

http://nbcpolitics.msnbc.msn.com/_news/2011/12/07/9280257-mcconnell-warns-of-popular-vote-catastrophic-outcome

Addressing what he called “the most important issue in America that nobody is talking about,” Senate Republican Leader Mitch McConnell warned Wednesday that the National Popular Vote movement is “getting dangerously close to achieving their goal of eliminating the Electoral College without actually amending the Constitution -- without anybody even noticing, unfortunately, what they’re up to.”

The National Popular Vote is a compact among state legislatures under which they pledge that they’ll award their electoral votes to the presidential candidate who wins the most popular votes nationwide, even if that candidate was not the majority choice of their state’s voters.

So far, California, seven other states, and the District of Columbia (all of which have large Democratic majorities) have passed legislation taking the National Popular Vote pledge. Those states and D.C. account for 132 electoral votes. The compact says it is to take effect when states with a total of at least 270 electoral votes have agreed to it.

Article II, Section 1 of the Constitution gives each state legislature the power to decide how its state’s presidential electors are selected. All but two states (Nebraska and Maine) use a winner-take-all system in which the person who gets the most popular votes in that state wins all of its electoral votes.

In a speech at the conservative Washington think tank the Heritage Foundation, McConnell said a national popular vote tally might require recounts in all 50 states, if the margin of victory were small.

“Imagine the following scenario: you’ve got a national election within 100,000 votes. That happened in 1968,” McConnell said.

The national popular vote would give “every precinct in America the incentive to have a recount so that recounts are going on in 50 states … When the national popular vote total is the way the president is chosen, then every vote in America in every precinct in America would become the subject for endless litigation. There wouldn’t be a chance the presidency would be resolved by Jan. 20 in time for swearing in.”

This would, McConnell said, be “a catastrophic outcome” and “a constitutional crisis” that “brings this country to its knees. We’ve never had a situation where the president wasn’t sworn in by the date specified in the Constitution.”

He added, “The proponents of this absurd and dangerous concept are trying to get this done while nobody notices, just sort of sneak this through,” and “we need to kill it in the cradle before it grows up.”


McConnell was joined at the event by the secretaries of state – the chief election officials in the states – of Iowa, Colorado, Kansas, Tennessee, Alabama and Mississippi, all of whom are Republicans and all of whom oppose the National Popular Vote.

Kansas Secretary of State Kris Kobach acknowledged that under the current electoral vote system voting by ineligible people might occur in hotly contested states.

Kobach contended that with NPV, “the incentive for voter fraud increases dramatically overall because you can just go to the state that is the weakest link in the chain and has the lowest protections against voter fraud and run up a huge number of fraudulently cast votes in that state much more effectively than going to a battleground state.”

Until now, enthusiasm for the NPV idea has come mostly from Democratic states and from progressives who are still chagrined that Al Gore lost the White House in 2000 even though he had more popular votes than George W. Bush. Gore’s defeat was the fourth time in the nation’s history that the person with the largest number of popular votes didn’t win the electoral vote tally, (with 270 needed to win).

Four years ago, it seemed clear that America would not see a reprise of the 2000 election. In the fall of 2008, Barack Obama had a significant lead in several battleground states such as Colorado.

But this time around a close election, and even a 2000 scenario, appears more plausible. That has revived interest in the national popular vote, which now has the backing of wealthy businessman Tom Golisano, a former independent candidate for governor of New York. 

Some Republicans are also backing the idea.

Republican Ray Haynes, former whip of the California state assembly, said, “35 states and 225 million Americans have absolutely no say over how the president is elected” because candidates spend all their time in the battleground states: Wisconsin, Virginia, Colorado and a handful of others.



Haynes said National Popular Vote would benefit California – a state no Republican presidential candidate has carried since 1988 – by giving candidates a reason to go there in the fall campaign and appeal to the state’s voters. 

Right now, he said, “California is the national ATM for every presidential candidate. In the last election we put $152 million into the presidential campaigns, but do you know how many visits California got from presidential candidates to court California voters? Zero.”

He said in the fall campaign the candidates “don’t care about California issues. They care about what happens in Florida, they care about what happens in Ohio, they care about what happens in Pennsylvania, but they don’t even talk to California.”


This would change under a National Popular Vote system because even though there are more Democratic voters in California than Republicans, there still leaves a huge number of GOP voters in the Golden State: at least five million – the number McCain won there in 2008 – and potentially far more than that if a GOP candidate showed up in the state and competed for them.

All of those votes would be added to the GOP candidate’s national vote total – which could win him the White House.

There’s another reason Republicans should support the National Popular Vote system, Haynes said. He sees a scenario in which Obama very narrowly carries the bare minimum of states needed to get 270 electoral votes: let’s say Virginia and Ohio by 10,000 votes each. “There’s a very serious chance that Obama loses the popular vote and wins the election. It would be the 2000 election in reverse.”
.

[bigdog]

a.  Yes, but...

b.  Agreed.  What I am trying to figure out, at a snail's pace, is the role/applications/limits of the sub-national governments and laches.  I have read some cases, including one from a Carolina (I think), that says that laches is not applicable to the states.  And, albeit a different question, the fact the the circuits can/do/have applied laches differently in different circumstances MAY mean that that your argument is applicable some places but not others.  Basically, I've been doing a a fair amount of reading on the subject recently, and need some time to figure it out. 

BD: I just skimmed that so please forgive me if I have missed some points, but herewith my observations

a) First and foremost, the question presented is inapplicable to the point I am making.  Are we agreed on this?

b) I don't have the separation of powers problem that some of the circuits do.  Isn't this a matter of remedy of law and/or equity?  To borrow the analogy of one of my professors (the wonderful Willis Reese, who was the Reporter for the Restatement of Conflict of Laws IIRC and/or maybe another one too)  I may have the right under the law to play the saxophone, but under the equitable doctrine of nuisance I do not have the right to play it under your bedroom window at 0300.   What is the difference of this from saying that that statutorily provided term for the statute of limitations does not foreclose the equitable doctrine of laches from being applied to the behavior for which it is intended?


PS:  Upon reflection, I am going to guess that the Supreme Court case of which I have been thinking was US v. GM (or GM v US) and would have been between 1917 and 1980; though I would guess it to have been decided in the 1960 or 70s.

[DougMacG]

This story is interesting to me in that they are trying to implement popular vote without a constitutional amendment.  Still I don't see how you end the electoral college without many states voluntarily giving up power they currently hold to states like Calif, NY etc.  Noteworthy is that only one side supports the movement.  Ending the electoral college is analogous to me to ending the equal representation of states in the Senate.  Like McConnell, I don't agree that a popular vote system would be preferable if you could implement it.  Just like we forgot in the Middle East, we weren't trying to implement a majority rule system.

A case is made that only battleground states have a say in national elections and that solid blue and solid red states never get any attention.  Missing in that argument is that the solid blue and solid red states already have a candidate that represents their consensus view.  It is the divided states that are struggling to decide which candidate represents them best.  The attention to battleground states is unfair IMO only when favors are offered like ethanol subsidies, if they constitute unequal treatment under the law.  But those of course are already banned elsewhere in the constitution. 

[bigdog]

Guro,
     I have come to the conclusion that, while I do not like the idea of tying laches into civil liberties questions, and while I am not sure that legally your argument makes sense (or does make sense), at this juncture it does not matter.  You have won, at least in the sense that there has been a massive police crackdown nationally.  So, as the OWS movement appears to be in its death throws, I think the answer has been illustrated, even if the question was wrong.  If the Occupy movement is resusitated as the weather turns, or they decide to try, try again whenever, I will revisit the discussion.

a.  Yes, but...

b.  Agreed.  What I am trying to figure out, at a snail's pace, is the role/applications/limits of the sub-national governments and laches.  I have read some cases, including one from a Carolina (I think), that says that laches is not applicable to the states.  And, albeit a different question, the fact the the circuits can/do/have applied laches differently in different circumstances MAY mean that that your argument is applicable some places but not others.  Basically, I've been doing a a fair amount of reading on the subject recently, and need some time to figure it out. 

BD: I just skimmed that so please forgive me if I have missed some points, but herewith my observations

a) First and foremost, the question presented is inapplicable to the point I am making.  Are we agreed on this?

b) I don't have the separation of powers problem that some of the circuits do.  Isn't this a matter of remedy of law and/or equity?  To borrow the analogy of one of my professors (the wonderful Willis Reese, who was the Reporter for the Restatement of Conflict of Laws IIRC and/or maybe another one too)  I may have the right under the law to play the saxophone, but under the equitable doctrine of nuisance I do not have the right to play it under your bedroom window at 0300.   What is the difference of this from saying that that statutorily provided term for the statute of limitations does not foreclose the equitable doctrine of laches from being applied to the behavior for which it is intended?


PS:  Upon reflection, I am going to guess that the Supreme Court case of which I have been thinking was US v. GM (or GM v US) and would have been between 1917 and 1980; though I would guess it to have been decided in the 1960 or 70s.

[Crafty_Dog]

BD: 

And I have yet to fully grasp what is the problem with passing legislation saying that people can't take over public parks just because they have already done so.   I seen no favoritism of one view over another.   Just because a particular political movement has taken over public parks, doesn't mean that a such legislation is driven by content discrimination.  Nor is content neutrality impugned simply because the Tea Party and Glenn Beck's crowds act differently and respectfully of others while OWS does not.

TAC!

[bigdog]

This game may interest some:

http://www.constitutionquest.com/Home.html

[DougMacG]

Already posted by Prentice on Immigration Issues, but also interesting in how it might apply to other cases or situations.  My understanding is that neither Kagan nor Thomas will recuse on the health care case. (?)


Justice Elena Kagan will not take part in [Arizona v. U.S., 11-182], presumably because of her work on the issue when she served in the Justice Department in the Obama administration.

[Crafty_Dog]

Didn't Kagan also work on Obamacare? 

Why does a question arise over Thomas and Obamacare?

[DougMacG]

Didn't Kagan also work on Obamacare?  - I believe she denies that.  Last I heard Republicans were looking at a 2 month gap in her records. 

Why does a question arise over Thomas and Obamacare?  - No reason to my knowledge but the left has called for his recusal.  The best they could come up with that I know of is that his wife has worked hard for its repeal.

[G M]

http://www.judicialwatch.org/weeklyupdate/2011/46-jw-causes-supreme-court-furor

Game Changer? JW Releases New Kagan Emails as Obamacare Heads to Supreme Court
 
From the moment Barack Obama signed his socialist healthcare overhaul into law, it was destined to wind up in the United States Supreme Court. And as we learned on Monday, that day will soon come. According to The Associated Press:
 

The Supreme Court said Monday it will hear arguments next March over President Barack Obama’s health care overhaul — a case that could shake the political landscape as voters are deciding if Obama deserves another term.
 
This decision to hear arguments in the spring sets up an election-year showdown over the White House’s main domestic policy achievement. And it allows plenty of time for a decision in late June, just over four months before Election Day.
 

Demonstrating the importance of this legal battle, the High Court announced it will hear a remarkable five and a half hours of oral argument, an extremely rare allotment of time in the Court’s modern era. (The last time that happened, the AP notes, was during arguments involving McCain-Feingold, key parts of which were ultimately ruled unconstitutional in 2003.) Supreme Court scrutiny will focus on, among other issues, the central component of Obamacare, the so-called “individual mandate,” which forces American citizens to purchase healthcare or face a stiff financial penalty. The Supreme Court will also consider whether all of Obamacare could be thrown out if any part of it is ruled unconstitutional. You can review the Court’s orders yourself here.
 
So now that the High Court has officially agreed to consider Obamacare, one question central to the fate of the law may no longer be theoretical: Will Supreme Court Justice Elena Kagan recuse herself?
 
Just days before the Supreme Court’s announcement, JW released three new documents that shed light on Justice Kagan and Obamacare while she served as solicitor general. (We got the documents pursuant to a Freedom of Information Act (FOIA) lawsuit filed on February 24, 2011. Our lawsuit had been consolidated with a similar FOIA lawsuit first filed against the Department of Justice (DOJ) by the Media Research Center. The DOJ sent them over to us with no explanation as to why they turned up 18 months after we first asked for them!)
 
Justice Kagan evidently did not recuse herself in April 2011 from the High Court decision not to “fast-track” for Supreme Court review Virginia’s lawsuit challenging Obamacare. She has said she was not “substantially” involved in the DOJ discussions regarding Obamacare’s constitutional or litigation issues.
 
The new documents do show her commenting excitedly on the legislation’s passage. I think you’ll find them extraordinary. Check out a few of the highlights:
 •An October 13, 2009, exchange between Kagan and former Deputy Solicitor General Neal Katyal. Katyal informs Kagan, “We just got Snowe on health care,” referring to Senator Olympia Snowe (R-ME). (The bulk of the email exchange reflects a discussion about Kagan, and also provides instructions regarding a hiring decision within the agency, although the nature of the position is unclear. When Katyal asks if Kagan wants to handle the hire via email or in person meeting, Kagan responds, “In person. I’ll call a meeting when I return.”)
 •A March 21, 2010, email from Kagan to then-Senior Counselor for Access to Justice Laurence Tribe: “I hear they have the votes Larry!! Simply amazing...” Tribe responds, “So healthcare is basically done! Remarkable.”
•A March 16, 2010, email from Kagan to David Barron, then-acting head of the Justice Department’s Office of Legal Counsel, asked if he had seen an article by Michael McConnell published in the Wall Street Journal that discussed a strategy by Democrats to “‘deem’ ObamaCare into Law without voting.” “Did you seee [sic] Michael McConnell’s piece in the wsj?” Kagan writes in an email with the subject line “Health care q.” “YES, HE IS GETTING THIS GOING,” replied Barron.
 
Last week, I predicted that these new emails were bound to raise additional questions about whether Justice Kagan ought to participate in High Court deliberations on Obamacare. Certainly, if these documents were known at the time of her confirmation, there may have been quite a different Senate debate. More specifically, we had asked for these documents around June 19, 2010 – even before her Senate confirmation hearings. Scandalously, the DOJ withheld these documents from not only the American people, but the very U.S. Senate considering her nomination. This goes beyond the issue of whether Justice Kagan should recuse herself, it goes to whether the DOJ intentionally withheld material information from Congress and violated FOIA law to ease then-Solicitor General Kagan’s path to confirmation.
 
And this is what Senator Jeff Sessions (R-AL) seemed to be wondering when he pressed Attorney General Eric Holder for answers regarding why these documents were not turned over to the Senate Judiciary Committee during Kagan’s confirmation hearing:
 

“I am deeply disturbed by these developments and believe that the Justice Department should have provided these documents to the Senate Judiciary Committee during Justice Kagan's confirmation hearing,” Sessions wrote to Holder in a series of questions for the record. “The Department’s failure to provide this information to Congress and to comply with FOIA requests, as well as your apparent inattention to these matters, is unacceptable.”
 

(Sen. Sessions was ranking member on the Senate Judiciary Committee during the Kagan confirmation process.)
 
Incidentally, the Obama DOJ dumped these documents just before the Veterans’ Day holiday weekend, hoping they would go unnoticed. This slow-walking of documents out of the Obama DOJ is yet one more scandal and makes one wonder what other information they are sitting on.
 
Previous emails obtained by Judicial Watch document new information about Kagan’s and her Solicitor General’s office involvement in key discussions pertaining to the legal defense of Obamacare.
 
For example, according to an email from former Deputy Solicitor General Neal Katyal to Brian Hauck, Senior Counsel to Associate Attorney General Thomas Perrelli, Kagan wanted her office to defend Obamacare from the very beginning:
 

Subject: Re: Health Care Defense:
 
Brian, Elena would definitely like OSG [Office of Solicitor General] to be involved in this set of issues…we will bring in Elena as needed. [The “set of issues” refers to another email calling for assembling a group to figure out “how to defend against the…health care proposals that are pending.”]
 

This is just one of many illuminating emails. You can read more here.
 
As a result of all our work (and the work of our friends at the Media Research Center), many have begun to call on Justice Kagan to recuse herself. The Judicial Crisis Network issued a white paper making the case for recusal and presidential candidates Herman Cain and Newt Gingrich have called on Justice Kagan to recuse herself.
 
At the least, further investigation is warranted. Following Judicial Watch’s lead, the House Judiciary Committee began an investigation but it has met resistance from the corrupt Holder DOJ. Meanwhile, your Judicial Watch will continue its investigation and aims to follow its success by breaking down the stone wall at DOJ on the Kagan controversy.

[Crafty_Dog]

I'm wondering if we should start a separate thread concerning the C'l issues and other aspects (e.g. Kagan's recusal vel non) of SCOTUS's consideration of this case , , ,

[G M]

I dunno, it's all just part of the Chicago-style corruption like ACORN voter fraud, "Gunwalker", Solyndra and every other attack on the rule of law by this administration.

[bigdog]

I recieved the following email from one of the authors who wrote the paper cited below.  The project looks interesting, to say the least.


I wanted to share an exciting legal language project that I think might be of interest to some you  http://legallanguageexplorer.com/  

In partnership with Michigan State University Law School  &  Emory Law School,  I am proud to announce the Beta Pre-Release of a Free New website designed to assist law scholars and students:   http://legallanguageexplorer.com/

Check it out and please feel free to share with others including blogs, your students, colleagues, etc.  We would love to get some web-traffic so we can identify bugs, etc. and make the site better for everyone.


HERE IS THE BASIC IDEA OF THE SITE:  
For Free, we offer you the chance to search the history of the United States Supreme Court (1791-2005) for ANY PHRASE  and get a frequency plot and the full text case results for that phrase.  Additional corpora such as US Ct. of Appeals Coming Very Soon!

We are just getting started here with this project and anticipate many features that will be rolling out to you in the near future.  We have announced it to world - so please feel free to share it with others.  

In addition, as we are still in Beta Pre-Release -- please feel free to send us your feedback / comments on the site.  Subject to resource and feasibility limitations, we are looking to make improvements to the site as we go.    


SCOPE OF COVERAGE:
In the current version, we are offering FULL TEXT results for EVERY decision of the United States Supreme Court (1791-2005).  We plan to soon expand to other corpora including the U.S. Court of Appeals, etc.
  

BASIC FEATURES:
Instant Return of a Time Series Plot for One or More Comma Separated Phrases.
When you access the site, the default search is currently interstate commerce, railroad, deed (with plots for each of the term displayed simultaneously).

Feel free to test out ANY phrase of Up to Four Words in length.

Here are just a few of our favorites:
Clear and Present Danger

Habeas Corpus

Custodial Interrogation

Due Process

Economics
Unconstitutional

Property

Privacy


FULL TEXT CASE ACCESS:

Each of the Phrases you search will be highlighted in Blue.  If you click on these highlighted phrases you will be taken to the full list of United States Supreme Court decisions that employ the selected phrase.  
Click to export the list to Excel or Click on an individual case and you will be able to access this case for free thanks to Carl Malamud at Public Resource.org (a Google Sponsored Public Interest Non Profit).

ADVANCED FEATURES:
  
Check out the advanced features including normalization (controlling for docket size) and alternative graphing tools.

PAPER:

Daniel Martin Katz, Michael J. Bommarito II, Julie Seaman, Adam Candeub & Eugene Agichtein, Legal N-Grams? A Simple Approach to Track the ‘Evolution’ of Legal Language in Proceedings of Jurix: The 24th International Conference on Legal Knowledge and Information Systems (Vienna 2011)  available at  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1971953

HELP / TUTORIAL:
Go Here and You Will Be Directed to a Brief Slide Based Tutorial Designed to Highlight Various Functions Available on the Site.  http://www.slideshare.net/Danielkatz/legal-language-explorer-com-tutorial  

[Crafty_Dog]

WWWOOOFFF!!! 

[Body-by-Guinness]

http://reason.com/archives/2011/12/15/the-epa-vs-the-constitution
Reason Magazine


The EPA vs. the Constitution

The Supreme Court prepares the hear a major Fifth Amendment case.

Damon W. Root | December 15, 2011

The Fifth Amendment to the U.S. Constitution declares that no person shall be “deprived of life, liberty, or property, without due process of law.” This means that if the government infringes on your rights, you are entitled to mount a timely and meaningful defense of those rights in court. It’s one of the cornerstones of our entire legal system, with roots dating back at least as far as the Magna Carta, which declared, “No free man...shall be stripped of his rights or possessions...except by the lawful judgment of his equals or by the law of the land.”

Unfortunately, the Environmental Protection Agency (EPA) prefers a less venerable form of justice, as the Supreme Court will hear next month during oral arguments in the case of Sackett v. Environmental Protection Agency. At issue is the EPA’s enforcement of the Clean Water Act through so-called administrative compliance orders, which are government commands that allow the agency to control the use of private property without the annoyance of having to subject its actions to judicial review.

The case started four years ago when a married couple named Mike and Chantell Sackett received an EPA compliance order instructing them to stop construction on what was supposed to be their dream home near Priest Lake, Idaho. The government claimed their .63-acre lot was a federally-protected wetland, but that was news to the Sacketts, who had procured all the necessary local permits. Their lot, which is bordered by two roads and several other residential lots, was in fact zoned for residential use.

The Sacketts contend that the compliance order was issued erroneously and they would like the opportunity to make their case in court. Yet according to the terms of the Clean Water Act, they may not challenge the order until the EPA first seeks judicial enforcement of it, a process that could take years. In the meantime, the Sacketts risk $32,500 in fines per day if they fail to comply. And complying doesn’t just mean they have to stop building; they must also return the lot to its original condition at their own expense.

Moreover, if they did eventually prevail under the current law, the Sacketts would then need to start construction all over again. By that point they would have paid all of the necessary compliance costs plus double many of their original building expenses. And who knows how much time would have been lost. Where’s the due process in that? The Sacketts understandably want the right to challenge the government’s actions now, not after it’s become too late or too expensive for them to put their property to its intended use.

For its part, the EPA argues that old-fashioned judicial review would simply get in the way. As the agency states in the brief it submitted to the Supreme Court, “A rule that broadly authorized immediate judicial review of such agency communications would ultimately disserve the interests of both the government and regulated parties, by discouraging interactive processes that can obviate the need for judicial action.”

Of course, the whole point of due process is that people sometimes do have “the need for judicial action” against overreaching government officials. Why should those people have to give up that right to the EPA? More to the point, why should the Supreme Court allow it to happen?

As the Institute for Justice observes in the friend of the court brief it filed on behalf of the Sacketts, “If other governmental agencies were to adopt an enforcement mechanism like that used by the Environmental Protection Agency in this case, the constitutional guarantee of due process under the law would be severely harmed and the ability to own and use private property would be subject to the unrestrained and unreviewed orders of government officials.” There’s a term for that sort of unchecked government power, and it’s not interactive processes.

This case boils down to the protection of a fundamental constitutional right. It’s not about hamstringing bureaucrats or overturning environmental laws. The Supreme Court simply needs to ensure that the Sacketts—and all other property owners—get their day in court by ruling that administrative compliance orders are subject to judicial review. Due process demands nothing less.

Damon W. Root is a senior editor at Reason magazine.

[G M]

This case boils down to the protection of a fundamental constitutional right. It’s not about hamstringing bureaucrats or overturning environmental laws. The Supreme Court simply needs to ensure that the Sacketts—and all other property owners—get their day in court by ruling that administrative compliance orders are subject to judicial review. Due process demands nothing less.

Damon W. Root is a senior editor at Reason magazine.

Agreed

[Crafty_Dog]

http://online.wsj.com/video/opinion-professor-newt-legally-challenged/BAFFFE08-0297-4296-84B7-6213DA89F16B.html?mod=opinion_video_newsreel

[JDN]

http://www.latimes.com/news/opinion/commentary/la-oe-chemerinsky-fedjudges-20111220,0,4776130.story