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The Oregon Occupiers

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The WaPo has several articles on the Oregon wildlife refuge occupiers:  Sarah Larimer and Niraj Chokski on the eight in custody, Michael Miller on LaVoy Finicum, who was killed, and Sarah Kaplan, Adam Goldman, and Mark Berman on efforts to recover the refuge from the remaining occupiers.  In the WSJ, Jim Carlton and Devlin Barrett also cover the latter point.

Personally, I have little use for people who protest by occupying property that is not theirs and has nothing to do with the dispute.  That goes for the Occupy movement of a few years ago, the current protest, and all the way back to the Vietnam War when protesting students staged sit-ins at campus facilities that had nothing to do with the war.

The sit-ins at segregated lunch counters during the civil rights movement were different.  The lunch counter operators were perpetrators of the injustice at issue.

The main beef of the current occupiers is the violation of their constitutional right to graze cattle on land that does not belong to them without paying fees to the owner of the land, i.e., the federal government.  I don't recall reading that in the Constitution, but maybe it's part of the "living document."
I should have listened to Yogi Berra and not made predictions, especially about the future.  The U.S. Supreme Court's orders list this morning does include certiorari grants as well as denials, and the Court did take up United States v. Texas, No. 15-674, even while turning down Arpaio v. Obama, No-15-643.

Questions Presented follow the break.

Connecticut Death Penalty Hearing

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Generally speaking, legislatures can make reductions in punishments retroactive to old cases or not, as they choose.  The Connecticut Legislature's repeal of the death penalty was unambiguously not retroactive, and politically it would not have passed without that savings clause.  The ink was not dry on the bill before the anti-death-penalty crowd attacked that clause of their own bill.  In a shocking act of judicial activism, the Connecticut Supreme Court in Santiago v. State declared the death penalty unconstitutional despite having rejected that claim many times over the years and despite the established history of nonretroactive changes in sentencing law in that state.

Last Thursday's News Scan noted the oral argument in the case of State v. Peeler, in which the state asks the Supreme Court to reconsider its decision.  Video of the argument is now available here.

The defense lawyer's argument is really painful to watch.  He just keeps insisting over and over that the Santiago decision must be respected as final.  So why did Santiago itself not respect as final all the earlier cases rejecting constitutional attacks on the death penalty?  The defense side seems to think that precedent is a ratchet.  No decision favoring the prosecution is ever final.  Every one is subject to constant attack.  But once the defense wins a point, it becomes absolutely sacrosanct.  This is utter nonsense.

A decision should receive no more respect as precedent than it gave to precedent.

Sheriff Joe v. Barry O.

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On January 15, the U.S. Supreme Court will consider in conference whether to take up the case of Arpaio v. Obama, No. 15-643.  This is a challenge to the effective nullification of large portions of immigration law through nonenforcement.  The D.C. Circuit dismissed on standing.  See my prior post.

The certiorari petition is here.  The SG's brief in opposition is here.  Sheriff Joe's reply was filed December 30, but I haven't found it online.

The petition, by Larry Klayman of Freedom Watch, has 10 questions presented.  Not the way I would have done it, but we all have our own style.

On the same conference list, presenting largely the same issues, is United States v. Texas, No. 15-674.  Texas won in the Fifth Circuit at the preliminary injunction stage.  SCOTUSblog's case page has the pertinent documents.  In this case, the Solicitor General is the petitioner.  Unlike us mere mortals, the SG gets a large portion of his certiorari petitions granted.  That's good for Sheriff Joe, because if they take one it makes it considerably easier to take the other.

Judges, Conscience, and Dictatorship

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Judge Harry Pregerson of the U.S. Court of Appeals for the Ninth Circuit recently took senior status.  That means he may still sit on three-judge panels but will no longer participate in the court's decisions to rehear a particularly important case before an 11-judge panel or sit on such larger panels.  Maura Dolan has this article in the L.A. Times.  It is mostly favorable, as articles on such occasions tend to be, but there is one dissenting view expressed.

The headline is, "Judge Harry Pregerson, leaving the bench at 92, always followed his conscience."  Sounds nice, doesn't it?  I mean, who could criticize a person for following his conscience?  Well, there is a big difference between "conscience" in personal conduct and "conscience" as used in this context.  Here, "conscience" is little more than a high falutin word for "opinion."  On matters of great public controversy, both sides believe they are right, and a judge who decides on the basis of which opinion he agrees with rather than on the basis of the law is acting as a dictator, not a judge.

Do Not Forget. Do Not Repeat.

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Fourteen years ago today, the worst crime in American history was committed.  For a time, we came together and realized that business as usual would not do.  Some people have very short memories, and many people have slipped back into the casual attitude toward national security that enabled Al Qaeda to perpetrate this crime.  Some contend that the Constitution requires us to dismantle the measures we put in place that successfully prevented a repeat of this crime.  It does not.

The great Justice Robert Jackson nailed it in 1949:  "The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact."

Add to this the famous saying of George Santayana:  "Those who cannot remember the past are condemned to repeat it."

We must not forget.  We must not repeat.

Facial v. As-Applied Attacks

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Along with the underlying Fourth Amendment question, Los Angeles v. Patel, decided today by the U.S. Supreme Court, has some interesting discussion about facial versus as-applied attacks on statutes (or ordinances).

Can a court really "strike down" a statute, as we so often casually say when discussing a constitutional case?  No, not really.  Repeal of a statute is a legislative function.  The theory of judicial review, as explained way back in Marbury v. Madison, is that the court must decide the case, and if the higher law of the Constitution points to one result and the lower law of the statute points to the other, the higher law must govern.  That does not wipe the statute off the books, though.  The statute at issue in Marbury gave the Supreme Court the authority to issue writs of mandamus, and it still had that authority under that statute after Marbury as long as it exercised the authority in its appellate jurisdiction, such as issuing it to control a lower court, and not by expanding its original jurisdiction beyond constitutional limits.

But can a court decide that a statute is completely void?
Adam Freedman has this book review in the City Journal with the above subtitle.  The title is Against Judicial Activism, and he reviews The Constitution: An Introduction by Michael Stokes Paulsen and Luke Paulsen.

It is interesting to compare the views of the the reviewer, the reviewed, and myself on the basic principle and specific applications.  Freedman says, "The Paulsens are at their best when critiquing the modern era of judicial activism. In their telling, the Warren Court (1953-69) produced 'careless' decisions, because the justices were focused on achieving policy goals rather than upholding the law."  Not sure I would have used the word "careless," but otherwise we are all agreed on that.  I shake my head whenever I hear activist justices such as Warren, Douglas, Brennan, and Marshall referred to as defenders of the Constitution.  In fact, they were gross violators of Constitutional Right Number One -- the right of the people to govern themselves through the democratic process.  Any time a judge usurps to the judiciary a question of policy that the Constitution actually leaves to the people, he violates the Constitution every bit as much as the notorious Sheriff Screws did.  The subheading of the review, which I chose to be the title of this post, is exactly right.
Engage, a publication of the Federalist Society, has this book review of The Constitution: An Introduction by Michael and Luke Paulsen.

The book begins by retelling the extraordinary events that led to the drafting and ratification of the Constitution and the quick addition of the Bill of Rights.  Then, in well under 100 pages, it elucidates the constitutional structure that the Constitution creates.  The authors evidence a great respect for the work of the Founders, and they have harsh words for those who treat the Constitution like a Rohrshach blot.  But they are also painfully honest about the flaws in the original design--and in particular, the Founders' accommodation of slavery.  The chapter devoted to this subject is one of the most interesting and will be instructive even for those who know a fair amount about the Constitution.  (For example, how many lawyers know that, were it not for the infamous three-fifths provision, which counted a slave as three-fifths of a person for purposes of congressional apportionment, John Adams, not Thomas Jefferson, would have won the pivotal presidential election of 1800?)

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The Paulsens' book fairly presents both sides on major interpretive issues, but they do not hide their own point of view.  They favor a form of originalism and judicial restraint.  They are decidedly Hamiltonian in their view of national and presidential power, but at the same time they support a robust conception of the individual rights set out in the Bill of Rights and post-Civil War Amendments.  Substantive due process, which they trace back to Dred Scott, however, is another matter.

And who is the reviewer?  Justice Samuel Alito.

Chemerinsky and the Supreme Court

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UC Irvine Law Dean Erwin Chemerinsky's new book attacking the Supreme Court has caused Volokh Conspirator Orin Kerr to "wonder[] if he was just criticizing the Supreme Court for not agreeing with his policy preferences."

Orin has this Q-and-A with Dean Chemerinsky in which Chemerinsky attempts to answer that question "no," but even the left-leaning commenters on the post mostly agree that he ends up demonstrating that the answer is "yes."

The Mythical Right to Remain Silent

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The Constitution of the United States guarantees a right to remain silent, right?  Guess again.  What the Fifth Amendment actually says is, "No person ... shall be compelled in any criminal case to be a witness against himself ...."  That is not exactly the same thing.

Emily Green has this story at NPR on a recent decision by the California Supreme Court on the use of silence as evidence of guilt, People v. Tom, and its predecessor case in the U.S. Supreme Court, Salinas v. Texas (2013).  The story has sound bites from several people, including yours truly, but the issue is more complex than can be covered in a brief story.

Timing Holder's Replacement

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"President Obama has yet to reveal his choice to succeed Attorney General Eric H. Holder Jr., but already the Senate confirmation process has begun its march toward contentiousness," Paul Kane and Juliet Eilperin report in the WaPo.  Kristina Peterson reports at the WSJ:

Some Republicans quickly condemned the idea of the Senate considering Mr. Holder's replacement when outgoing lawmakers would still be able to vote on the next attorney general. "Allowing Democratic senators, many of whom will likely have just been defeated at the polls, to confirm Holder's successor would be an abuse of power that should not be countenanced," Sen. Ted Cruz (R., Texas) said
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Some Democrats said it would be a mistake to purposefully delay the process. "It would be irresponsible for anyone to try to delay confirmation of the country's chief law-enforcement officer for political purposes and I would hope responsible members of both parties would cooperate in a thorough hearing and a confirmation vote," said Judiciary Chairman Patrick Leahy (D., Vt.)
Here in the United States, we get to vote separately for a national legislature, which deals with foreign and military affairs, interstate commerce and other matters which need to be decided on a national level, and for a state legislature which is supposed to have control over those matters that can be handled more locally.  The line isn't as crisp as it used to be, or, in my opinion, as it should be, but it's there, and those separate elections serve to keep government more responsive to the will of the people.  Canada and Australia also have federated governments.

Englishmen, though, only get one legislative vote -- for their representative in the Parliament of the United Kingdom.  That may be about to change, Nicholas Winning and Jenny Gross report in the WSJ.

Constitution Day

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Yesterday was Constitution Day, the 227th anniversary of the Federal Convention's formal proposal of a new Constitution to replace the Articles of Confederation.

I like to stress that the document was only a proposal on that day, not the supreme law of the land.  It only became a contract between the people and their government, and hence the supreme law, when ratified by the people.

Personally, I would prefer that Constitution Day be the date of ratification, but that's a bit hard to pin down.  By its terms, the Constitution formed a union of nine states and was the supreme law of that union on the day the ninth state ratified. That would be New Hampshire on June 21, 1788.  Everyone knew, though, that the new union had no chance without the big dogs, Virginia on June 25 and New York on July 26.  It's a bit spooky how close those votes were.
The question whether the President could lawfully release five Taliban commanders without notifying Congress continues to roil legal academia.  In previous posts, here and here, I have chimed in, and have noted the views of others, including Prof. John Yoo of Berkeley and Prof. David Pozen of Columbia, who support my view that the President acted unlawfully.  Taking the other side in two compelling notes in the comments section to the former post, is my wife, former Scalia clerk and Associate White House Counsel, now Adjunct Professor of Law at Georgetown, Lee Liberman Otis.  Lee notes in particular the very broad Constitutional powers the President is given as commander-in-chief.

Today, another quite apt attorney, Visiting Professor Louis Fisher of the College of William and Mary Marshall-Wythe Law School, also argues that the President acted unlawfully (and hypocritically).  As he notes in his National Law Journal article:

In 2009, the Office of Legal Counsel found [Bush White House claims about the President's commander-in-chief powers] inconsistent with constitutional text. Because Article 1 grants significant war powers to Congress, legal opinions that categorically preclude Congress from enacting legislation concerning the detention, interrogation, prosecution and transfer of enemy combatants "are not sustainable," the office found. The office shared its analysis with the U.S. attorney general, the White House counsel, the legal adviser to the National Security Council, the principal deputy general counsel of the Department of Defense and several offices within the Justice Department.

Five years later, the Obama administration decided it could send five senior members of the Afghan Taliban from Guantánamo to Qatar in exchange for Sgt. Bowe Bergdahl, held by the Taliban. The administration said it did not have to comply with a statute requiring the administration to give Congress 30 days notice before transferring detainees. Before making the transfer, the Defense Department sought guidance from the Justice Department, but no one in the DOJ, including the Office of Legal Counsel, has issued a legal memo to justify these transfers.

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