Tonight I have two updates for you, on cases I previously discussed on this webinar.

The first concerns the constitutionality of the Consumer Financial Protection Bureau – the CFPB.  A federal judge in New York has found that the CFPB “is unconstitutionally structured because it is an independent agency that exercises substantial executive power and is headed by a single Director.”  An independent agency with a single director is something we have not seen before and the judge ruled this violates separation of powers [p. 103] 

I had previously discussed a separate CFPB case in federal court in the District of Columbia.  The D.C. Circuit Court of appeals upheld the constitutionality of the CFPB in January 2018.  A third case is in the Fifth Circuit Court of Appeals.  In all likelihood, this issue is headed to the Supreme Court for final resolution.

The other case I’ll discuss tonight is Carpenter v. United States, which involves the Fourth Amendment. The Supreme Court just ruled that police must have probable cause and get a warrant before they can obtain cell site location data from a phone company.  Writing for the majority, Chief Justice Roberts stated that people have a legitimate expectation of privacy in their location information because it provides “an intimate window into a person’s life, revealing not only his particular movements, but through them his ‘familial, political, professional, religious, and sexual associations.’” 

Four Justices wrote dissenting opinions.  Of special interest is the one by Justice Gorsuch, champion of the property rights theory of the Fourth Amendment.  He criticized the long-standing expectation of privacy test as an unreliable guide that leads to unpredictable results.  Cell phone records are property, in his view.  He compared cell phone location data to sealed letters put in the mail, property which arguably requires a warrant to search even when entrusted to a third party, the post office.  Gorsuch and his property rights rationale failed to carry the day, however, so ‘legitimate expectation of privacy’ remains the primary theory of Fourth Amendment jurisprudence for now.

1A: Supreme Court OK’s political messages on clothing at polling places; case based on ‘Don’t Tread on Me’ T-shirt
https://www.nbcnews.com/politics/supreme-court/supreme-court-strikes-down-polling-place-dress-codes-n872536

10A, Executive Power: Trump admin asks Supreme Court to strike down 7th Circuit’s national injunction against enforcing new conditions on federal grant funding for sanctuary cities
http://thehill.com/regulation/392816-trump-administration-asks-supreme-court-to-issue-sanctuary-cities-order

14A: Supreme Court punts on partisan gerrymandering cases in Wisconsin and Maryland; still no standards to know when gerrymandering goes too far
http://thehill.com/homenews/news/392758-supreme-court-rules-against-wisconsin-democrats-in-key-gerrymandering-case

14A: federal judge knocks down Kansas law requiring proof of citizenship to vote; appeal to be filed.
https://www.huffingtonpost.com/entry/judge-rules-against-kris-kobach-kansas-proof-of-citizenship-law_us_5b282ee1e4b05d6c16c652a0

1A: U of Washington to pay College Republicans $127,000 to settle denial of free speech case.
https://freedomxlaw.com/seattle-times-uw-to-pay-127000-in-legal-fees-in-settlement-with-college-republicans-over-free-speech/

8A: Supreme Court to hear Excessive Fines case
http://reason.com/volokh/2018/06/18/supreme-court-will-decide-does-the-exces

1A: federal judge nixes private enforcement of Colorado’s campaign finance laws; had become “tool for corruption and speech suppression”
http://ij.org/press-release/federal-court-rules-that-colorados-abuse-prone-campaign-finance-enforcement-violates-first-amendment/
 
1A: Missouri’s 30-day formation deadline for campaign committees is unconstitutionally overbroad, federal appeals court rules
http://media.ca8.uscourts.gov/opndir/18/06/171314P.pdf
 
1A: Supreme Court green lights citizen’s suit against city council for arresting him in retaliation for his opposition to a development plan, but sets high bar of proof
https://www.usatoday.com/story/news/politics/2018/06/18/florida-man-wins-second-supreme-court-case-speech/594594002/
 
1A: white nationalist’s suit against Twitter for suspending account survives motion to dismiss; issue whether social media are ‘public forums’ will not be fully resolved any time soon
https://refugeeresettlementwatch.wordpress.com/2018/06/17/important-free-speech-case-involving-twitter-moves-forward/
 
1A: it took 30 years, but Teamsters finally pay couple $3,000 in forced union dues case
http://freebeacon.com/issues/after-three-decades-couple-prevails-over-union/?utm_source=Freedom+Mail&utm_campaign=2eb78b419c-EMAIL_CAMPAIGN_2018_06_18_01_00_COPY_62&utm_medium=email&utm_term=0_b5e6e0e9ea-2eb78b419c-45628225

1A Freedom of Religion: Florida Court of Appeals rules Catholic priest cannot be compelled to testify about what a penitent said in confession even though the penitent waives confidentiality
http://www.5dca.org/Opinions/Opin2018/061118/5D18-194.op.pdf
 
Freedom of Religion: “Canada’s Top Court Rules Christian College Can’t Promote Biblical View of Sexual Behavior on Campus” #FascistsToTheNorthOfUs
http://www.lifenews.com/2018/06/15/canadas-top-court-rules-christian-college-cant-promote-biblical-view-of-sexual-behavior-on-campus/

2A: Illinois Court guts ban on guns within 1,000 feet of schools, but more tailored bans may be possible
http://reason.com/volokh/2018/06/18/illinois-court-strikes-down-ban-on-carry
 
2A: Temporary injunction issued against Illinois town’s assault weapons ban that imposed $1,000/day fines on weapons not turned in; ban  “puts the lie to claims by anti-gunners that ‘nobody is coming to take your guns.'"
http://freebeacon.com/issues/illinois-judge-grants-gun-rights-groups-temporary-injunction-deerfield-assault-weapons-ban/?utm_source=Freedom+Mail&utm_campaign=24362a856e-EMAIL_CAMPAIGN_2018_06_14_12_42_COPY_01&utm_medium=email&utm_term=0_b5e6e0e9ea-24362a856e-45628225
 
2A: man arrested, charged with a dozen felonies after trying to comply with California’s complicated registration law redefining assault weapons
http://freebeacon.com/issues/california-man-home-raided-guns-confiscated-trying-register-firearm/?utm_source=Freedom+Mail&utm_campaign=890ecd6f2d-EMAIL_CAMPAIGN_2018_06_15_06_36_COPY_01&utm_medium=email&utm_term=0_b5e6e0e9ea-890ecd6f2d-45628225
 
4A: police cannot rely on Google Translate to get consent to search from someone who doesn’t speak English, Kansas court rules
https://qz.com/1306830/a-us-court-rejected-google-translate-as-a-means-of-providing-consent-to-a-cop/
 
4A: coaxing a suspect out of his house does not relieve police of duty to get a warrant to search the house, per federal appeals court
http://media.ca1.uscourts.gov/pdf.opinions/16-2009P-01A.pdf
 
8A Cruel and Unusual Punishment: state law defining intellectually disabled with obsolete IQ standard for purposes of the death penalty is unconstitutional, Kentucky Supreme Court rules
https://www.courier-journal.com/story/news/politics/2018/06/14/kentucky-supreme-court-ruling-mental-competency/702539002/

Penumbras and Emanations: Illinois county, after aspiring to become a gun rights sanctuary, might also become abortion-free sanctuary
http://www.lifenews.com/2018/06/15/first-ever-resolution-would-make-this-county-an-abortion-free-sanctuary-for-the-unborn/

Nullification: New York to cut arrests for smoking marijuana in public in half despite drug still being a federally controlled substance.
https://www.nytimes.com/2018/06/19/nyregion/nypd-marijuana-arrests-new-york-city.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=second-column-region&region=top-news&WT.nav=top-news

14A: the ugliness of affirmative action – Harvard is suppressing Asian-American admissions and NYC will destroy its best public schools that have produced Nobel prize winners
http://www.libertylawsite.org/2018/06/15/discrimination-against-asian-americans-reveals-the-ugliness-of-racial-selection-harvard-lawsuit-drew-gilpin-faust/

14A Due Process / Commerce Clause: North Carolina court holds income taxation of out-of-state trust unconstitutional
https://www.jdsupra.com/legalnews/income-taxation-of-out-of-state-trust-69813/

Amendments: Can there be ‘unconstitutional’ constitutional amendments? E.g., an amendment to overturn Citizens United even though it would offend free speech principles.
http://www.libertylawsite.org/2018/06/19/unconstitutional-constitutional-amendments-democracy-originalism-progressivism/

Magna Carta 800 years old – it may only have benefitted nobles and not have declared natural rights for all like the Declaration of Independence, but it still represents an important development in the history of liberty
http://www.insidesources.com/magna-carta-u-s-founding-documents-keys-civilization-liberty/
+ https://www.claremont.org/crb/article/magna-carta-and-us/

A socialist wrote the Pledge of Allegiance to help immigrants become assimilated
http://www.rochester.edu/newscenter/parsing-the-pledge-of-allegiance-supreme-court-anniversary-324462/

Only you can prevent constitutional decay – “democratic self-government should not be taken for granted. Our experiment in liberal constitutionalism is just that — an experiment that can fail if not properly sustained.”
https://www.nationalreview.com/2018/06/american-classical-liberalism-response-to-radical-catholics/

‘Juneteenth’ – slaves in Texas didn’t learn they were free until 2 months after the Civil War ended
https://www.dailysignal.com/2018/06/18/juneteenth-is-about-the-triumph-of-american-freedom-over-slavery/?utm_source=TDS_Email&utm_medium=email&utm_campaign=MorningBell%22&mkt_tok=eyJpIjoiTm1RNE5HVTBNVEk1TVdVNCIsInQiOiJnR3JVT1BpQ0pFV1FxeHd4Z01wVmRoNDZZVGJ2S3hvU21ibWlLSWdNRlBUaVhNaVwvYjBLbzRTWUh5SDZLTit0VDBueGF5SjJTb1BjMlV4MTRyY29mSlVsbFZSeUZjSGdXVnZZOEFiRnpoNTF1c29XY1dDQ1JlTEo2NVY1MVl4ZHUifQ%3D%3D

“Hawaiian judge orders released US detainees back to N.Korea” (satire)
http://thepeoplescube.com/peoples-blog/hawaiian-judge-orders-released-us-detainees-back-to-n-korea-t20112.html   

Kudos: President Trump hugs U.S. flag after speech. Can you imagine Barack Obama doing that? I can’t.
https://www.thegatewaypundit.com/2018/06/president-trump-hugs-american-flag-after-speech-liberals-triggered/

Shame! NY legislator whose ‘heroes are America’s enemies’ takes knee to protest resolution honoring Flag Day. You don’t have to cash that paycheck, you know.
http://freebeacon.com/culture/new-york-legislator-kneels-protest-resolution-honoring-flag-day/?utm_source=Freedom+Mail&utm_campaign=8528fab36c-EMAIL_CAMPAIGN_2018_03_19_COPY_01&utm_medium=email&utm_term=0_b5e6e0e9ea-8528fab36c-22312337

Executive Overreach: Justice Department won’t contest Texas suit to end DACA; agrees DACA is unconstitutional and should be terminated
https://www.khou.com/article/news/politics/national-politics/us-justice-department-wont-fight-texas-efforts-to-end-daca/285-563135070

5A Due Process: federal judge greenlights challenge to Trump policy separating families at the border
https://www.nytimes.com/2018/06/06/us/family-separations-migrants-court.html

10A Commandeering: U.S. can’t withhold grants from sanctuary city Philadelphia, federal judge rules
http://thehill.com/latino/390996-federal-judge-rules-against-trump-administration-in-philadelphia-sanctuary-city-case

Article IV: “Radical plan to split California into three states earns spot on November ballot”
http://www.latimes.com/politics/la-pol-ca-california-split-three-states-20180612-story.html

1A Free Exercise, Compelled Speech: artists (citing Masterpiece Cakeshop) to appeal Arizona ruling forcing them to convey messages about same-sex marriage against their conscience.
http://www.adfmedia.org/News/PRDetail/10037

1A: federal appeals court knocks down North Carolina law that sought to bar whistleblowers and undercover journalists from publicizing wrongdoing at private entities (firms, nursing homes, etc.)
https://www.ecowatch.com/north-carolina-anti-sunshine-law-2575735371.html
 
1A: Louisiana Governor signs campus free speech bill; sorry kids, no safe spaces here
http://www.theadvocate.com/baton_rouge/news/politics/legislature/article_9f2242fe-6a8f-11e8-9937-7b6131abfe91.html
 
1A: New York poised to criminalize cyber-bullying of minors, but proposal to curb “abuse” seen as vague and overbroad
http://reason.com/volokh/2018/06/09/ny-set-to-criminalize-much-verbal-abuse
 
1A: “Criminal Libel Laws Are Constitutional If They're Limited to Deliberate Lies”
http://reason.com/volokh/2018/06/06/criminal-libel-laws-are-constitutional-i
 
1A Free Press: arrest of Senate Intelligence Committee leaker presages battles over press freedom, encryption ahead
https://www.wsj.com/articles/senate-staffers-indictment-spotlights-first-amendment-issues-encrypted-messaging-1528502485?mod=hp_lead_pos8
 
Freedom of Expression: radical gay Left continues assaults on free speech by barraging Twitter CEO for eating at Chick-fil-A and CrossFit exec for tweeting Christian view of ‘pride’ during Gay Pride Month
https://patriotpost.us/articles/56498-rainbow-mafia-to-christians-shut-up?utm_medium=email&utm_source=pp.email.3540&utm_campaign=digest&utm_content=body

2A: ‘gun sanctuary’ movement growing in Illinois to counter threatened gun control measures
https://pjmedia.com/news-and-politics/illinois-counties-declare-themselves-gun-sanctuaries-oregon-voters-could-be-next/?utm_source=PJMCoffeeBreak&utm_medium=email&utm_term=June2018
 
5A Eminent Domain: Supreme Court considering case where landowner ensnared in Catch-22’s requiring ‘final’ regulatory and state court decisions before filing in federal court
http://reason.com/volokh/2018/06/06/our-amicus-brief-in-major-property-right

5A Takings / 8A Excessive Fines: Michigan officials keep all the proceeds ($42,000) of a tax sale after foreclosure when tax bill was only $2,000.  Court calls it “theft”.
https://scholar.google.com/scholar_case?case=11360849702279292516&hl=en&as_sdt=6,47

6A Effective Counsel: rights not violated if lawyer is n-word racist; must show racism adversely affected lawyer’s performance.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/07/16-56188.pdf

6A Attorney-Client Privilege: prison records phone calls between inmates and lawyers, prosecutors listen to them. Convictions could be tossed out.
http://www.kansascity.com/opinion/editorials/article212899804.html

8A: Sex abuse by prison guard constitutes cruel and unusual punishment, federal appeals court rules
http://www2.ca3.uscourts.gov/opinarch/162939p.pdf

9A: “Climate Constitution” push shows the danger of unmooring the Ninth Amendment from its natural law roots. Good luck with getting a “stable climate”; no such thing and declaring it a right won’t help you. #PieInTheSky
https://www.commondreams.org/views/2018/06/06/climate-constitution-courts-and-streets

Economic Freedom: appeal to be filed after Pennsylvania court rules only licensed real estate professionals can manage Airbnb properties
http://ij.org/press-release/pennsylvania-court-dismisses-airbnb-lawsuit/

Contract Clause: states cannot impair obligation of contract but Supreme Court OK’s wiping out spouse beneficiary in life insurance policy after divorce (only Gorsuch dissents)
http://www.libertylawsite.org/2018/06/12/gorsuch-tries-unsucessfully-to-restore-the-contract-clause/

State Constitutions: Maine Governor appeals court order to start Medicaid expansion, argues implementation without legislative appropriation for the cost violates separation of powers
http://www.capitalgazette.com/sns-bc-me--maine-medicaid-20180607-story.html

State Constitutions: Voter ID fight continues in North Carolina as Republicans to seek amendment to state constitution
https://www.usnews.com/news/best-states/north-carolina/articles/2018-06-07/voter-id-proposed-again-this-time-as-change-to-constitution

State Constitutions: major rethink of Chevron deference continues as Mississippi Supreme Court abandons deference to agency interpretation of statutes
https://courts.ms.gov/Images/Opinions/CO129999.pdf

Amendments: activists seeking constitutional amendment to overturn Citizens United decision protecting corporate political spending (will that go for unions too, hmm?)
https://www.capenews.net/mashpee/news/advocacy-group-takes-on-political-speech-case/article_bba523f2-5046-513d-a103-646ccd86ae92.html

Textualism – the only legitimate school of constitutional interpretation – helps the judiciary fulfill its proper role as the watchdog of liberty. (Clint Bolick)
https://object.cato.org/sites/cato.org/files/pubs/pdf/catosletter-v16n2.pdf

Socialist magazine argues for a ‘constituent assembly’ with “unbounded” authority to rewrite the Constitution and “impose” its will on the country. Sure, that’ll help.  Liberté, Egalité, Fraternité!
https://www.jacobinmag.com/2017/01/constitution-trump-democracy-electoral-college-senate

1788: opponent changes mind with promised addition of Bill of Rights, helps ratify U.S. Constitution in Massachusetts
http://northandover.wickedlocal.com/news/20180606/on-second-thought-remembering-north-andovers-william-symmes-jr-who-broke-constitutional-stalemate

Kudos to Korean War vet for winning fight to get his town to fly the U.S. flag again. (p. 5)
http://files.constantcontact.com/0425bf3f301/4672c161-0aa9-4773-9328-4954a53540cd.pdf

Shame! California college drops national anthem from graduation ceremony. (Trump will not defend school against foreign invasion...  just kidding!)
https://www.dailysignal.com/2018/06/06/california-college-spikes-national-anthem-from-graduation-ceremony/?utm_source=TDS_Email&utm_medium=email&utm_campaign=CapitolBell&mkt_tok=eyJpIjoiTlRKa1lqVTJNakkwTURBeiIsInQiOiJ2eGVzYWlndk53ZDgzUWhEZGtlQmNLNGp2c2hLZlF6Vkt3S1wvTmpiYmpaejNjdGM3VmtrSXd0UUJcL2U0bWxtUXV5bkx1dmozYUxHaVB1OVFtdkg4WEtTXC82RTFIZ2l0V3RodUQ3Tk1LUENiSmY0TnZSS2piTzhWMzlZckNOc240OSJ9
 
 

It’s been less than a week since the Supreme Court rendered the Masterpiece Cakeshop decision, but it already seems like eons.

Most of the commentary on the case has focused on how narrow the decision is.  The Supreme Court put off the big questions about vendor involvement in same-sex weddings – for example, whether forcing unwilling vendors to provide services to same-sex weddings is compelled speech in violation of the First Amendment.  Instead, to everyone’s surprise, the Court picked up on one aspect of the case before it and limited its ruling in favor of baker Jack Phillips to instances where the vendor can show that the government deliberately targeted religion in applying its nondiscrimination law.  The Court left for another day the question whether the same result should obtain in the ordinary case where the government does not show open hostility to religion. 

What’s generally been overlooked is what the case does do for people of faith and how they can use the Masterpiece decision to their full advantage.  Religious people have been given an argument they didn’t have stated so clearly a week ago – that the government’s action is a thinly veiled attack on religion in a country founded on freedom of religion. 

Before turning to how to use this argument, let’s look at the constitutional basis for the Court’s decision in Masterpiece in more detail. Writing for the majority, Justice Anthony Kennedy concluded that “the Commission’s treatment of Phillips’ case violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint.”  The Court held that, in so doing, the actions of the Colorado Civil Rights Commission violated the Free Exercise Clause of the First Amendment.  That clause prohibits Congress from preventing the free exercise of religion.  It has been applied to the states through the Due Process Clause of the 14th Amendment through what is called the incorporation doctrine. 

Civil rights laws must be applied in a manner that is neutral towards religion, the majority opinion said, but the record here showed that the Commission was neither tolerant nor respectful of Phillips’ religious beliefs. Some of the commissioners stated their view that there is no room for religion in the public sphere and, further that Phillips’ faith was “despicable”.  They compared his ordinary religious views to defending slavery or the Holocaust.

Now, how can religious people use the Masterpiece decision against the radical gay Left and groups like the Freedom from Religion Foundation who are crusading against religion?

If I were the attorney representing religious clients, I would assess whether the case fits squarely into the Masterpiece Cakeshop envelope – that is, whether the facts show that the law under which the opponents are proceeding is a frontal assault on religion or that the people administering the law are hostile to religion.  I would force them to spend time exploring the facts in the case and defending against the proposition they are anti-religious.  I would pin down the government officials in deposition and at trial regarding their attitudes toward religion. Put their hostility to religion, if it exists, on the record. 

If the case doesn’t fit squarely within Masterpiece, I would argue for as broad a reading of Masterpiece as I possibly could.  Suppose you find some facts that indicate hostility to religion on the part of government officials, but those facts aren’t as brazen as in Masterpiece.  Then you can argue in good faith for an extension of Masterpiece, even if your facts don’t rise to the level of what happened to Jack Phillips.

Even if your facts fall short, at the very least you will have discredited your opponents, which Cicero – the all-time master of argumentation – advises you always do at the outset of every argument.  Discrediting your opponents may tip the balance in your case in your favor in some intangible way.

Finally, this is the first time I can recall that that radical gay Leftists have been told there are limits, and they aren’t always going to get what they want.  I’m talking about the ones who want homosexuality taught in kindergarten and who have not been interested in any compromise whatsoever up to this point.  Law is the adjustment of competing interests.  Other people have interests, too, and, sometimes, those interests are going to win out.  As I used to tell my clients: Litigation? Anything can happen.  I lost cases I should have won and won cases I should have lost.  That’s what happens when you let a court decide your dispute.  You lose control.  So another use of Masterpiece is to instill doubt in your opponents, and get them to reach some accommodation with you – to settle the case, in other words.

I’ll close with this: The Court in Masterpiece has handed people of faith an argument to make.  It’s up to them to fight for as much space under that argument as they can, so that it is applied as broadly as possible.  Who knows – some attorney somewhere, representing religious clients, might even come up with a masterpiece of argumentation that helps stem the anti-religious tide sweeping over the nation.
_________________________
More Constitution News at Liberato.US

1A Religion: Supreme Court rules baker need not work for same-sex wedding when the government deliberately targets religion in passing ordinance; broader questions left undecided
http://www.breitbart.com/big-government/2018/06/04/supreme-court-sides-with-masterpiece-cakeshop-in-same-sex-wedding-ruling/

5A Due Process: Trump signs federal Right to Try legislation giving patients access to experimental drugs
https://www.washingtonexaminer.com/daily-on-healthcare-trump-signs-bill-giving-patients-right-to-try-experimental-drugs

5A: Supreme Court ducks case to force U.S. to provide abortions to illegal immigrant minors, calling it moot (abortion already performed). Strange argument: failure to provide abortion is ‘undue burden’ on abortion rights.
http://bwcentral.org/2018/06/scotus-hands-trump-victory-keeps-intact-illegal-immigrant-abortion-policy-despite-aclu-objections/

1A, Separation of Powers: union sues over Trump order limiting the time federal workers can spend on union business when they’re supposed to be working
https://www.dailysignal.com/2018/05/31/union-sues-trump-for-telling-fed-workers-to-stop-doing-so-much-union-business-on-taxpayers-dime/?utm_source=TDS_Email&utm_medium=email&utm_campaign=CapitolBell&mkt_tok=eyJpIjoiT1RBMVpXRTFOMkppWkRVdyIsInQiOiIrVnF1WUU5c2ZlQWx6T1dyQyswXC9rZXN5dytrS0NaQnJDTmQ5ZHpiWmY5VnpKeXBqRHZtbjYzS3g1TzNINmF2RjNmdkdUWXhlZFRmc1o3QTF4SXpuXC9ackNvdDZ3V0Q5OTNJZ2hybXlRUFMzQUs1V3A2eVlwQ2d6dlZNdHBXc0EzIn0%3D

14A Equal Protection: Sailor jailed for taking classified submarine photos sues Obama and Comey for selective prosecution (low likelihood of success)
http://bwcentral.org/2018/06/ex-navy-sailor-pardoned-by-trump-says-hes-suing-comey-and-obama/
 
14A Equal Protection: Virginia school district appeals ruling allowing transgender student to proceed with challenge to bathroom policy
https://www.dailysignal.com/2018/06/04/school-board-fights-to-preserve-bathroom-policy-after-judge-oks-trans-students-lawsuit/?utm_source=TDS_Email&utm_medium=email&utm_campaign=CapitolBell&mkt_tok=eyJpIjoiTkRjNE1HRmpZamsxWXpKaCIsInQiOiJVblFrNjFHZ2dsdjRRNHJQdWhNOVZnTnJyU0tBQkNYZklublluXC9oTzJEWjZwUlU2WlZaWkRvMnJkSVNoc2RmMXBWUFNMTkdhc1FhYk5ZdnlUWHZka01nN2dSOTRBTkJHZFkyaXo0YUg4ZHBaWGtMQXdaMUs1VFhITVl4eFBFSnQifQ%3D%3D

1A: free speech issue not reached in same-sex cake case; two Justices found compelled speech but two did not
http://reason.com/volokh/2018/06/04/what-do-the-masterpiece-cakeshop-decisio
 
1A: Bradley Manning loses appeal; can’t invoke free speech as shield for giving national defense info to Wikileaks
http://reason.com/volokh/2018/06/01/chelsea-manning-loses-wikileaks-first-am
 
1A: wrongly-named Liberty High School in Oregon wrongfully barred student from wearing Trump border wall t-shirt, federal judge rules
http://reason.com/volokh/2018/05/31/liberty-comes-to-liberty-high-school-tru
 
4A: Delaware Supreme Court rules the Fourth Amendment does not bar the use of incriminating evidence revealed to an undercover officer friended on Facebook
http://reason.com/volokh/2018/05/30/with-friends-like-these
 
4A: if qualified immunity blocks suits against officers, how else to punish violations of the Fourth Amendment without excluding evidence from trial?
http://www.libertylawsite.org/2018/06/05/the-original-meaning-and-the-exclusionary-rule-fourth-amendment-clarence-thomas-collins-virginia/
 
5A Double Jeopardy: NY Attorney General seeks state law to jail those like Dinesh D’Souza pardoned of federal crimes
https://www.dailywire.com/news/31335/new-york-attorney-general-lets-prosecute-people-ben-shapiro?utm_source=shapironewsletter&utm_medium=email&utm_content=060218-news&utm_campaign=position1

5A Self-Incrimination: intellectually-challenged 16-year-old murderer (susceptible to suggestion and subject of Netflix show) argues confession not voluntary after police gave him ‘right’ answers to say during interrogation
http://reason.com/volokh/2018/05/30/will-making-a-murderer-make-its-way-to-t

5A right against self-incrimination trumps state civil forfeiture law, Iowa Supreme Court rules. Unconstitutional to require individuals challenging forfeiture to disclose how they acquired the property.
https://www.forbes.com/sites/instituteforjustice/2018/05/30/iowa-supreme-court-rules-civil-forfeiture-laws-violate-fifth-amendment-upholds-pleading-the-fifth/#5aedff771655

14A Equal Protection: “Latino, Asian-American Groups Sue Over Citizenship Question”
https://www.usnews.com/news/best-states/maryland/articles/2018-05-31/latino-asian-american-groups-sue-over-citizenship-question

14A Equal Protection: Michigan judge loses challenge to forced retirement age; state doesn’t explain it but the policy can’t be said to be irrational.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0097p-06.pdf

Chevron: Wisconsin Supreme Court may lead the way in changing approach to courts deferring to agencies –“ three  levels  of  deference:  great  weight  deference,  due  weight  deference  or  no  deference”
https://www.nationalreview.com/2018/06/wisconsin-case-separation-of-powers-leave-judging-to-judges/

Amendments: Equal Rights Amendment only needs one more state for ratification, but get ready for fight about deadline expiring; seen as overturning all anti-abortion laws
http://www.lifenews.com/2018/05/31/equal-rights-amendment-that-could-overturn-every-pro-life-state-law-nationwide-ratified-in-another-state/

Amendments: article summarizes arguments, pro and con, for ratifying Equal Rights Amendment after long delay
https://constitutioncenter.org/blog/can-a-dormant-proposed-constitutional-amendment-come-back-to-life

Treaties: Supreme Court takes case that could give half of Oklahoma to Muscogee Indians
http://www.peoplesworld.org/article/muscogee-nations-could-own-half-of-oklahoma/

Mark Levin: Progressivism concentrates power and is thus incompatible with the  U.S. Constitution
https://www.cnsnews.com/blog/gavi-greenspan/levin-progressivism-and-constitutionalism-cant-function-together-theyre-oil-and

Woodrow Wilson hated the Constitution because he believed in technocrats and experts, not democracy or We the People
https://www.washingtontimes.com/news/2018/may/30/woodrow-wilsons-case-against-the-constitution/

4A: it’s the 90th anniversary of Olmstead case allowing warrantless wiretapping (overturned in 1967 Katz case)
https://constitutioncenter.org/blog/olmstead-case-was-a-watershed-for-supreme-court

Constitution’s citizenship for ‘Indians not taxed’ became full birthright citizenship for all Indians in 1924 law; full voting rights delayed until 1965
https://constitutioncenter.org/blog/on-this-day-in-1924-all-indians-made-united-states-citizens

Ready for Your Quiz? Beach incident with underage drinker raises host of issues: do you have to give the cops your name? Submit to a breathalyzer? Can cops turn their body cams off? Etc.
http://www.nj.com/news/index.ssf/2018/05/qa_heres_what_you_should_know_about_the_woman_punc.html

Shame! Eric Holder urges Justice Department employees to defy Trump in Spygate to ‘protect the institution’, - where is that in the Constitution?
https://www.washingtontimes.com/news/2018/may/23/holder-urges-dojfbi-unconstitutionally-defy-presid/

1A: political correctness and attacks on free speech indicate budding tyranny, with thought control the endpoint
http://thefederalist.com/2018/06/06/todays-two-main-political-camps-pro-thought-versus-anti-thought/

Secret court in U.S. jails activist for publishing the truth, gags media, orders outlets to delete articles. Then I woke up. (Thank heaven for the U.S.  Constitution.  This is why we fight for it.)
https://www.thenewamerican.com/world-news/europe/item/29152-secret-u-k-proceedings-send-activist-to-prison-gag-media

Tonight, I discuss the presidential pardon power, including the question whether or not sitting Presidents can pardon themselves. But, first, an update:

Last time, I discussed whether the appointment of Robert Mueller as special counsel was constitutional under the Appointments clause. Mark Levin spent three nights on the question, arguing strongly that Mueller’s appointment was unconstitutional because Mueller was given wide powers to investigate.  This makes him like a U.S. Attorney, a principal officer who must be confirmed by the Senate.  Mark Levin discussed this on May 21st, 22nd, and 23rd, and you can find the shows on the Audio Rewind page at MarkLevinShow.com.

Going on now to the pardon power, it is found in Article II, Section 2 of the U.S. Constitution.  It is recognized to be a broad power with few limitations.  [Chemerinsky, Constitutional Law: Principles and Policies, 4th Ed., p. 371]  The Supreme Court in an 1866 case [Ex parte Garland, 71 U.S. (4 Wall.) 333,380] said the power extends to every offense known to federal law and may be exercised at any time – before criminal proceedings begin, while they are pending, or after conviction. 

The major limitation specified in the Constitution is that the President may not issue a pardon in cases of impeachment.  So Gerald Ford pardoned Richard Nixon for any and all crimes that Nixon may or may not have committed in a 5-year period ending in 1974. Articles of impeachment were voted out of the House Judiciary Committee, but that’s as far as they got.  So Nixon had not yet been impeached, and the fact that the pardon came before criminal proceedings began was likewise not a problem.  However, there was a third issue in Nixon’s case.  The Supreme Court has never ruled on the validity of open pardons – for any and all potential crimes - and some question their constitutionality. [here at ftn. 7]

There are some other limitations on the pardon power.  The President can’t pardon someone for state crimes, or for civil liability.  So, in a 1925 case, the President pardoned someone for criminal contempt of court but would not have been able to do so if it had been civil contempt of court.  [Ex parte Grossman, 267 U.S. 87, 121-122]  Also, the President cannot award any compensation from the U.S. Treasury to anyone granted a pardon. [Chemerinsky, p.374]

Pardons can take the form of complete exoneration – as if the crime had never been committed – or a reduced sentence.  In a 1927 case, the Supreme Court upheld the President’s power to reduce a death sentence to life imprisonment. [Biddle v. Perovich, 274 U.S. 480].  In 1974, the Supreme Court approved the President’s commutation of a death sentence on the condition that the person never be eligible for parole, even though the statute did not provide for a sentence of life without parole.  Any reduction in sentence is within the President’s power, the Court said. [Schick v. Reed, 419 U.S. 256].

Can the President pardon an entire group of people?  The answer is yes and it has happened at least twice.  Jimmy Carter used the pardon power to grant amnesty to Vietnam War draft dodgers in 1977. [Chemerinsky at 373] In 1868, President Andrew Johnson granted amnesty from prosecution for treason and all other crimes committed while fighting in the Civil War. [id.]

Could a President pardon everyone in federal prison – just open the doors and let everybody out?  Theoretically, the answer is yes, although the practice has developed over the years of following the recommendations of the Office of the Pardon Attorney at the Justice Department.  Conventional practice is to let that Office screen the applications, require anyone requesting a pardon to wait five years after conviction or release and demonstrate the ability to live a responsible and productive life.   But Trump did not follow convention in Dinesh D’Souza’s case this week – D’Souza didn’t ask for a pardon, Trump just did it.  Some have observed that Trump is drawn to cases where the prosecution was politically motivated, Sheriff Joe Arpaio being another case in point.   Pardons can be refused, by the way.  George Wilson was sentenced to death for robbing the U.S. mail, but chose to hang rather than accept a presidential pardon in 1833.  The Supreme Court said he was within his rights to do so. [United States v. Wilson: 32 U.S. 150 (1833)]

Rudy Giuliani said this week that, theoretically, President Trump has the power to pardon himself.  That’s disputed, of course.  The question came up in the Nixon era and again in 1998 when Bill Clinton was impeached.  A 1974 Justice Department memo took the position that Presidents can’t pardon themselves directly, but could do so indirectly under the Twenty-Fifth Amendment.  Presidents could declare themselves temporarily unable to perform the duties of the office, the Vice President as Acting President could pardon the President, then the President could resume office.  Some observers said this week that impeachment would await any President that tried to exonerate themselves through the pardon power.