Recently in Constitution Category

Scalia Speaks

| No Comments
The late Justice Scalia's son Christopher has edited a collection of his speeches, with a foreword by Justice Ginsburg.  Ronald Collins has a review at SCOTUSblog.
The U.S. Supreme Court has issued the following order in Trump v. IRAP, No. 16-1436, the Fourth Circuit case challenging the 90-day ban on travel from six countries where the U.S. was unable to properly vet admittees (bold-face added):

We granted certiorari in this case to resolve a challenge to "the temporary suspension of entry of aliens abroad under Section 2(c) of Executive Order No. 13,780." Because that provision of the Order "expired by its own terms" on September 24, 2017, the appeal no longer presents a "live case or controversy." Burke v. Barnes, 479 U. S. 361, 363 (1987). Following our established practice in such cases, the judgment is therefore vacated, and the case is remanded to the United States Court of Appeals for the Fourth Circuit with instructions to dismiss as moot the challenge to Executive Order No. 13,780. United States v. Munsingwear, Inc., 340 U. S. 36, 39 (1950). We express no view on the merits.

Justice Sotomayor dissents from the order vacating the judgment below and would dismiss the writ of certiorari as improvidently granted.
The portion I have bold-faced means that the obnoxious Fourth Circuit opinion is wiped out as precedent.  CJLF's brief in the case, which urged precisely this result, is here.  At the time of the main briefing, we were the only ones calling for this, although in a supplemental letter brief in response to the Court's request the Solicitor General came around.

The companion Hawaii case from the Ninth Circuit addresses two other provisions in addition to the 90-day ban.  A provision limiting the number of refugees in the fiscal year just ended became moot on October 1.  A 120-day provision will become moot 120 days from the day the Supreme Court partially lifted the stay on it, which will be later this month.  I expect a similar disposition of that case at that time.

Sociological Gobbledygook

| 1 Comment
"Although some people have urged that this Court should amend the Constitution by interpretation to keep it abreast of modern ideas, I have never believed that lifetime judges in our system have any such legislative power."  -- Justice Hugo Black, concurring in McGautha v. California (1971).

Yesterday in the reapportionment case, Chief Justice Roberts expressed a similar sentiment on transcript page 40.

[T]he whole point is you're taking these issues away from democracy and you're throwing them into the courts pursuant to, and it may be simply my educational background, but I can only describe as sociological gobbledygook.
No, Mr. Chief Justice, it's not your educational background.  I call it "sociobabble," a variation on the "psychobabble" theme, but "sociological gobbledygook" will do nicely.

Presidents Quashing Prosecutions

From the Interesting Stuff Stumbled Upon While Looking For Something Else file comes United States v. Phillips, 31 U.S. 76 (1832) (emphasis added):

MR ATTORNEY-GENERAL, of counsel for the plaintiff, having informed the court that a nolle prosequi had been entered in this cause in the circuit court of the United States for the eastern district of Pennsylvania, agreeably to instruction from the president of the United States, of which a copy has been filed in the office of the clerk of this Court, and which was read in open Court, now here moved the Court to dismiss this cause; on consideration whereof, it is ordered by this Court, that this cause be, and the same is hereby dismissed.
Imagine that, the President directing that a particular criminal case be dropped, even after it has gone up on appeal to the Supreme Court.  Haven't we been told lately that the President must keep his hands off cases being handled by DoJ, with mutterings that "interference" might even be criminal and impeachable?

Old Hickory obviously didn't see it that way.  He was the head of the executive branch, vested by the Constitution with "the executive power" in its entirety.  He told the AG what to do, the AG did it, and the Supreme Court evidently didn't see anything remarkable in that.  The latter point seems particularly important, since Old Hickory never was one for constitutional niceties, but the Marshall Court was.
Far too often, people run to the courts claiming that some action of the executive or legislative branch is unconstitutional when their basis is really nothing more than strong disagreement with the merits of the decision.  It is refreshing to see a recognition of the important difference in this editorial in the WaPo.

Much as we find Mr. Trump's travel ban offensive, imprudent and unwise; much as we believe it inflicts real harm not just on America's foreign policy objectives but also on families, communities and institutions in the United States, it's fair to wonder whether it really amounts to an attack on Islam and an affront to the Constitution.
That's a step in the right direction, but understated.  There is no need to wonder.  The order is well within the President's legal and constitutional authority, as I have explained previously on this blog.  Of course the Post is entitled to its opinion on the wisdom of the policy, which I won't get into here.  We should give credit where it is due for seeing the difference between "offensive" and "unconstitutional," a difference too seldom recognized.
Immediately after last November's election, two lawsuits were filed by the anti-death-penalty crowd in California.  One of them, in the California Supreme Court, seeks to block the voter-approved reform measure, Proposition 66.  Briefing in that case is completed, and we are waiting with bated breath for oral argument to be set.

The second case was filed by the ACLU in Superior Court in Oakland, Alameda County.  This suit claims that the statute specifying lethal injection as the method of execution and leaving it to the Department of Corrections and Rehabilitation (CDCR) to fill in the details violates the separation of powers.  This thesis has been rejected by courts nationwide except Arkansas.  Seriously, you would have to go all the way back to 1935 and the notorious "sick chicken case" to find such a cramped view of delegation in the federal courts or any but an aberrant few state courts. 

CDCR filed a demurrer.  That's legalspeak for "even if all the facts you allege were true, you would still have no case as a matter of law."  It's a way to get rid of a bogus case at the threshold instead of going to trial.

Judge Kimberly Colwell sustained the demurrer without leave to amend.  That's legalspeak for "You're outta here and don't come back."

The early pages of the order are background and rejecting CDCR's arguments why the court should not reach the merits.  The good stuff is the merits discussion beginning on the bottom of page 8.

BAC test evidence and DUI

| 5 Comments
In Birchfield v. North Dakota, the Supreme Court held that breath tests, but not blood tests, may be administered without a warrant as a search incident to lawful arrest for drunk driving.  The Court also held that motorists may not be criminally punished for refusing to submit to a blood test on the basis of legally implied consent.  In Missouri v. McNeely, a plurality of the Court held that the natural dissipation of alcohol in a motorist's blood stream alone does not create a per se exigency that would justify a non-consensual blood draw without a warrant.

Criminal Justice Legal Foundation filed a brief in a companion case to Birchfield arguing that a motorist's statutorily implied consent to submit to a search of his or her breath, blood, or urine after lawful arrest for suspicion of DUI falls within the consent exception to the Fourth Amendment's warrant requirement.  We argued that requiring all law enforcement officers to secure a warrant after lawful arrest is impractical due to the vast differences in resources in some jurisdictions.  We also argued that it was reasonable for a state to mandate consent as an alternative to a warrant as a condition of using its public roadways.  The public's interest in protecting innocent people and keeping drunkards off the roads is significant in comparison to the privacy interests of an arrested motorist who made the choice to drink and drive.

Last week, the high Court's jurisprudence tied the hands of law enforcement and hindered prosecutors from obtaining probative evidence of blood alcohol concentration levels in at least two incidences.

A Flawed Restraining of a Flawed Order

Michael McConnell, Stanford Law Professor and Hoover Institution scholar, has this article at Hoover on last week's Ninth Circuit decision.

Criminal Insider Trading

| No Comments
The U.S. Supreme Court today decided Salman v. United States, No. 15-628, yet another case in the continuing saga of when trading securities based on an insider tip is against the law.

What always struck me as very odd about insider trading is that we have this enormous body of law with both criminal and civil liabilities, and at the root of it all is a very broadly worded regulation, SEC Rule 10b-5, not a statute.  The statute in question, 15 U.S.C. ยง 78j(b), makes it a crime to trade securities using "any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe ...."

Should insider trading be a crime?  Yes, under some circumstances.  But Congress should make it a crime, not the SEC.  Administrative agencies have a place in modern civil law, filling in gaps that the legislature will not get around to, but defining crimes should be a non-delegable legislative power.

Setting the Details on Execution Methods

| 1 Comment
The ACLU is really getting desperate to stop resumption of executions in California.  They certainly lost on one of the ballot measures last week, and it is close to certain they lost on the other.  AP has not "called" Proposition 66, but the Secretary of State's Office did remove it from its "close contests" page this afternoon when the margin inched up to the 2% threshold for "close."

In California, and in almost all states, the legislature sets the method of execution in broad terms and the prison department fills in the details.  That has been the law here and almost every capital punishment state for a long time.  The outlier is Arkansas, where a howler of a decision by the state supreme court said that violates the separation of powers.

Maura Dolan reports in the L.A. Times:

The ACLU of Northern California challenged a state law that gives the Department of Corrections and Rehabilitation wide flexibility in establishing execution procedures.

Delegating such policy decisions to a state agency, the suit says, violates separation of powers provisions of the California Constitution.
Seriously?  It never has before.
Bill noted earlier this morning the renaming of George Mason's law school as the Antonin Scalia Law School.  As he and Justice Kagan note, Justice Scalia was a giant of the law and a leader in producing an important change in direction for our judicial system.

The fundamental principle, too often forgotten, is that the rightful power belongs to the people "to institute [their] Government, laying its Foundation on Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness."

The Declaration is not just a decorative backdrop for debates.  It is the guiding light of our government.

When the judicial branch of government imputes new principles into the Constitution that the people never put there and when it usurps to itself decisions that the form established by the people assigned to another branch it violates both the Constitution and the fundamental principle on which it is based.

Judges who commit such acts of usurpation may have the best of intentions.  They may genuinely believe that different principles and different forms would be more just.  But that is not their decision to make in a democracy.  The sole legitimate way to make those changes is through the amendment process in Article V of the Constitution.

Originalism is not merely a philosophy or a theory.  It is nothing less than the defense of the democratic bedrock of our government against autocracy.

Justice Scalia understood this.  A great many more judges understand this now than did when he joined the Supreme Court, but still not enough.
Akhil Reed Amar of Yale Law is a rarity -- a prominent legal academic who has his head screwed on straight when it comes to the Fourth Amendment exclusionary rule.  He has this post at SCOTUSblog titled The Court after Scalia: The despicable and dispensable exclusionary rule.  No doubt about where he stands.

I agree with what Professor Amar says about the exclusionary rule, but not so much what he says about the Justices.  He begins by noting the difference between cases where the Court was focused on the substantive Fourth Amendment question and cases where it focused on the exclusionary remedy:

In countless cases over the last forty years, the Court has held that the Fourth Amendment was violated by the facts at hand, and has thus ordered or upheld evidentiary exclusion....   But whenever the modern Court has squarely focused on the exclusionary rule itself - giving express thought to whether the rule's contours should be widened or narrowed - the Justices have almost always ruled against the rule, and have done so in case after case dripping with implied or express contempt for it.
This contempt is well founded:

The exclusionary rule has no sound footing in any originalist legal source material. None. Nothing in the text as originally understood supports it; no framer ever endorsed it; no judge in America for the first century after independence ever followed the exclusionary rule or any genuine prototype of it. On one of the very few occasions when a lawyer tried to argue for exclusion before 1876, the lawyer was laughed out of court by America's preeminent jurists, led by Joseph Story.
A bit of rhetorical exaggeration there.  Laughing wasn't Justice Story's style.  But he did make very clear that the exclusionary argument had no basis in the law at that time.  My brief in Utah v. Strieff has more on this.

Mapp v. Ohio, the case that imposed the exclusionary rule on the states, was wrongly decided as an original matter.  A long string of decisions has chipped away at it, limiting the damage it does to some extent, but the case has not been overruled.  Why not, and what of the future?

Treason?

| No Comments
James Taranto at the WSJ has this column listing some of the reaction to Donald Trump's email comments yesterday.  "Reaction was swift and, we will argue, overwrought."  My take is in this post.  Part of the disagreement is on how you interpret what he said, and there is some room for reasonable disagreement there.  What is most certainly out-of-bounds, though, is the hysterical claim that his comment is treason.

Treason is the only crime defined in the Constitution.  The Framers put the definition there and made it exceedingly narrow to preclude the kind of creative definitions of treason that were instruments of tyranny in England at least as far back as the notorious King Henry VIII.  Here is the American definition:

Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.
Are we at war with Russia?  Nope.  The treason talk can stop right there.  QED.

Amending the Bill of Rights

| 9 Comments
The WSJ has this editorial, titled Clinton to Madison: Get Me Rewrite.

"Today, I'm announcing that in my first 30 days as President, I will propose a constitutional amendment to overturn Citizens United and give the American people--all of us--the chance to reclaim our democracy," Mrs. Clinton said in a taped speech to the Netroots Nation conference of progressives. First 30 days? Who knew the 225-year-old First Amendment was in need of such urgent revision?
Is amending the Bill of Rights fair game?  How about getting rid of the defendant's privilege not to testify in a criminal case?  Can we give it the heave-ho?  Probably not.

But those who agree with Mrs. Clinton would say her amendment does not change the real First Amendment, just a misinterpretation of it by the Supreme Court.  Fair enough.  Let's have an amendment to scrape off all the barnacles attached to the criminal law and procedure provisions of the Bill of Rights that were not included in those amendments as originally understood.

First over the side is the Fourth Amendment exclusionary rule.  Miranda is next. 

Dump that stupid rule that the prosecutor cannot comment on the defendant's failure to testify.  Have you seen the prosecutor's closing argument in the BBC series Broadchurch?  Great fun.  Don't try this at home.  Almost makes you want to move to England.  Except for the wigs.
Matt Apuzzo reports for the NYT:

Attorney General Loretta E. Lynch plans to announce on Friday that she will accept whatever recommendation career prosecutors and the F.B.I. director make about whether to bring charges related to Hillary Clinton's personal email server, a Justice Department official said. Her decision removes the possibility that a political appointee will overrule investigators in the case.

The Justice Department had been moving toward such an arrangement for months -- officials said in April that it was being considered -- but a private meeting between Ms. Lynch and former President Bill Clinton this week set off a political furor and made the decision all but inevitable.
Of course, under the "unitary executive" structure of the federal government, all executive decisions are ultimately under the control of the President, but to squelch an indictment now Mr. Obama would have to do so personally, without Ms. Lynch as a buffer.  The political consequences of doing so can be extraordinarily high, as President Nixon discovered after the Saturday Night Massacre.

Update:  Devlin Barrett has this article in the WSJ:

Monthly Archives