Tag: Constitution

Pass the Popcorn

States are in conflict over the collection of income taxes for remotely working employees.

States like New Hampshire and Connecticut, who have large numbers of people who work in other states, are attempting to claw back taxes that would have been collected if they still went into the office:

The rise of remote workers during the Covid-19 pandemic has led to a showdown in the U.S. Supreme Court over which state gets to tax their income.

More than a dozen states submitted legal briefs this week to weigh in on a petition that New Hampshire filed with the court in October to stop Massachusetts from taxing residents working remotely. The petition says Massachusetts doesn’t have the right to tax the income of New Hampshire residents who previously commuted to their jobs in Massachusetts but now work from home.

The case hasn’t yet been scheduled for a private conference among Supreme Court justices, who will decide whether they will grant it a hearing. A ruling would have significant budget implications for states that have lost billions of dollars in tax revenue during the pandemic and could set a precedent on taxing remote workers that endures past the coronavirus crisis.

The U.S. Congress has for years discussed setting clearer rules for interstate taxation disputes, but hasn’t passed any legislation. New Hampshire took its complaint directly to the U.S. Supreme Court, which has original jurisdiction over disputes between two or more states.

This does raise some interesting issues, and I would expect it to make it to the Supreme Court, as this is a classic sort of interstate conflict that they resolve, but I’m an engineer, not a doctor, dammit!*

*I love it when I get to go all Dr. McCoy!

Yes, Fascism

This is literally subordinating the entire machinery of justice to the personal service of Donald Trump:

Attorney General William P. Barr told federal prosecutors in a call last week that they should consider charging rioters and others who had committed violent crimes at protests in recent months with sedition, according to two people familiar with the call.

The highly unusual suggestion to charge people with insurrection against lawful authority alarmed some on the call, which included U.S. attorneys around the country, said the people, who described Mr. Barr’s comments on the condition of anonymity for fear of retribution.

The attorney general has also asked prosecutors in the Justice Department’s civil rights division to explore whether they could bring criminal charges against Mayor Jenny Durkan of Seattle for allowing some residents to establish a police-free protest zone near the city’s downtown for weeks this summer, according to two people briefed on those discussions.


During a speech on Wednesday night, Mr. Barr noted that the Supreme Court had determined that the executive branch had “virtually unchecked discretion” in deciding whether to prosecute cases. He did not mention Ms. Durkan or the sedition statute.

“The power to execute and enforce the law is an executive function altogether,” Mr. Barr said in remarks at an event in suburban Washington celebrating the Constitution. “That means discretion is invested in the executive to determine when to exercise the prosecutorial power.”

The disclosures came as Mr. Barr directly inserted himself into the presidential race in recent days to warn that the United States would be on the brink of destruction if Mr. Trump lost. He told a Chicago Tribune columnist that the nation could find itself “irrevocably committed to the socialist path” if Mr. Trump lost and that the country faced “a clear fork in the road.”


The attorney general’s question about whether Ms. Durkan, the former U.S. attorney in Seattle, had violated any federal statutes by allowing the protest zone was highly unusual, former law enforcement officials said.

“The attorney general seems personally, deeply offended by the autonomous zone and wants someone to pay for it,” said Chuck Rosenberg, the former U.S. attorney in the Eastern District of Virginia. “If the people of Seattle are personally offended, they have political recourse. There is no reason to try to stretch a criminal statute to cover the conduct.”


Mr. Barr mentioned sedition as part of a list of possible federal statutes that prosecutors could use to bring charges, including assaulting a federal officer, rioting, use of explosives and racketeering, according to the people familiar with the call. Justice Department officials included sedition on a list of such charges in a follow-up email.


The most extreme form of the federal sedition law, which is rarely invoked, criminalizes conspiracies to overthrow the government of the United States — an extraordinary situation that does not seem to fit the circumstances of the protests and unrest in places like Portland, Ore., and elsewhere in response to police killings of Black men.


Congress has stipulated that a conviction on a charge of seditious conspiracy can carry up to 20 years in prison.

He is also excoriating professional staff for resisting the politicization of the Department of Justice, ignoring the obvious, even the most junior associate at a law firm is required to speak out if they think that what is proposed is illegal or unethical.

If Barr has his law license a year after he leaves office, they system will have failed:

Attorney General William P. Barr delivered a scathing critique of his own Justice Department on Wednesday night, insisting on his absolute authority to overrule career staffers, who he said too often injected themselves into politics and went “headhunting” for high-profile targets.

Speaking at an event hosted by Hillsdale College, a school with deep ties to conservative politics, Barr directly addressed the criticism that has been building for months inside the department toward his heavy hand in politically sensitive cases, particularly those involving associates of President Trump.

“What exactly am I interfering with?” he asked. “Under the law, all prosecutorial power is invested in the attorney general.”


Barr said that argument, in essence, means “the will of the most junior member of the organization” would determine decisions, but he insisted he would not “blindly” defer to “whatever those subordinates want to do.”

“Letting the most junior members set the agenda might be a good philosophy for a Montessori preschool, but it is no way to run a federal agency,” he said.

The attorney general, the nation’s top law enforcement official, spent much of the speech eviscerating the idea of the Justice Department as a place where nonpolitical career prosecutors should be left to decide how sensitive cases are resolved.

BTW, what he is describing is why most state forbid corporate owned law firms, because the non-lawyer managers ordering their employees to file unlawful motions.

Andrey Vyshinsky wishes that he was William Barr.

This Court Decision Matters

This has been black letter law since the 3⁄5 compromise was overturned by the fourteenth amendment of the US Constitution in 1868:

A federal court on Thursday rejected President Trump’s order to exclude unauthorized immigrants from population counts that will be used next year to reallocate seats in the House of Representatives, ruling that it was so obviously illegal that a lawsuit challenging the order need not go to a trial.

The court, a three-judge panel in Federal District Court in Manhattan, said Mr. Trump’s proposal exceeded his authority under federal laws governing the census and reapportionment. The specially convened panel said there was no need to consider a second claim in the lawsuit that the president’s order violated the Constitution’s requirement to base apportionment of the House on “the whole number of persons in each state.”

“The merits of the parties’ dispute are not particularly close or complicated,” the judges wrote in granting summary judgment to the plaintiffs, a view that was broadly shared by legal scholars. Two of the judges, Richard C. Wesley and Peter W. Hall, were named to the bench by President George W. Bush. The third, Jesse M. Furman, was nominated by President Barack Obama.

The case involved lawsuits brought by two sets of plaintiffs, one a group of state and local governments and the United States Conference of Mayors, and the second a coalition of advocacy groups and other nongovernmental organizations. The groups argued that Mr. Trump’s order would cause some of them to lose representation in the House and would damage all of them by leading to a less accurate census.

Since the first census was taken in 1790, the number of seats each state holds in the House of Representatives has been based on counts of everyone living in the United States regardless of citizenship or legal status, except for slaves and “Indians not taxed” during the nation’s early years. Former slaves gained citizenship in 1866; all Native Americans did in 1924, although they were counted in regular censuses beginning in 1900.

Mr. Trump tried to scrap that process in July, telling the Commerce Department in a memorandum that the Census Bureau should produce two population counts — one the same as those taken every decade, and the other an estimate of the number of unauthorized immigrants living in each state.

I do not expect that the Supreme Court to rule on this before on the election.

Most of This Is Completely Unconstitutional

In response to Republican attempts to run out the clock on pandemic relief, which Trump has characterized as Democratic stonewalling, Trump has issued a profoundly constitutionally dubious executive order which appeared geared toward his reelection, with a side order of killing Social Security.

Briefly, he has issued an order for $400/week supplemental unemployment payments, a suspension of Social Security tax payments, deferring student loan payments and cutting interest, and extending the eviction moratorium.

The first two items are very clearly unconstitutional, Congress has exclusive power over taxation under, and I’m not sure that he has authority over either the student loan or eviction actions.

The interesting thing is that anyone who is a landlord has standing to challenge the executive order, since they can show damages to themselves personally.

I expect this to hit court (more likely courts) by the close of business on Monday:

President Trump took executive action on Saturday to circumvent Congress and try to extend an array of federal pandemic relief, resorting to a legally dubious set of edicts whose impact was unclear, as negotiations over an economic recovery package appeared on the brink of collapse.

It was not clear what authority Mr. Trump had to act on his own on the measures or what immediate effect, if any, they would have, given that Congress controls federal spending. But his decision to sign the measures — billed as a federal eviction ban, a payroll tax suspension, and relief for student borrowers and $400 a week for the unemployed — reflected the failure of two weeks of talks between White House officials and top congressional Democrats to strike a deal on a broad relief plan as crucial benefits have expired with no resolution in sight.


“We’ve had it,” he added, repeatedly referring to his directives as “bills,” a term reserved for legislation passed by Congress. He accused the Democrats of holding up negotiations with demands for provisions that appeared to have little to do with the pandemic, though he made little mention of comparable items in the $1 trillion proposal Republicans unveiled last month.

Democrats have refused to agree to that plan, pressing instead for a far more expansive economic relief package, at least twice as large, that would provide billions more for states and cities and food aid, and revive the lapsed $600-per-week enhanced federal jobless aid payments. (Republicans are proposing to revive the payments, but at a rate of $400 a week.)


It was unclear whether the aid would even materialize if lawsuits are filed challenging their legality. Mr. Trump walked away from the lectern after just a few questions from reporters about his claim that he had the ability to circumvent Congress.


Shortly after the event on Saturday, the White House released texts of the measures — one executive order and three memorandums — which included several flourishes that read like political documents in accusing Democrats of playing games. One invoked the Stafford Act, a federal disaster relief statute, to divert money from a homeland security fund and allow states to use money already allocated by Congress to help people who have been laid off amid the coronavirus pandemic, effectively allowing them to apply for disaster relief to cover lost wages. The mechanism would pull from the same fund that covers natural disasters in the middle of what is expected to be a highly active hurricane season.


It was unclear how quickly states, whose unemployment systems had already been overburdened by the record numbers of new jobless claims, would be able to adjust to a new system, or whether they will have the resources to supplement an additional benefit.


He also retroactively signed a memorandum suspending the payroll tax from Aug. 1 through the end of 2020, though the order would just defer the payment of the taxes. (Mr. Trump vowed that if re-elected in November, he would extend the deferral and the payments.)

If Mr. Trump tried to make a payroll tax cut permanent, it would have a drastic effect on the funding of Social Security, which he has previously vowed not to cut.

Trump has actually promised to permanently eliminate the Social Security and Medicare taxes, so that “vow” is inoperative.

The memorandum that Mr. Trump called a moratorium on evictions did not revive the expired moratorium that was part of the $2.2 trillion stimulus law passed in March. Instead, it said that federal policy was to minimize evictions during the pandemic and that officials should identify statutory ways to help homeowners and renters.

So his actions on evictions translate to, “¯_(ツ)_/¯”.  Weak tea.

Needless to say this is a political ploy, and there likely to be weeks, if not months of legal challenges before they might take effect.

OK, This is Not What I Expected

The Supreme Court just ruled that about ½ of Oklahoma remains an Indian reservation, and so sovereign land, at least to the degree that reservations are sovereign in the United States:

The first thing we learned this morning with the announcement of the decision in McGirt v. Oklahoma was that Chief Justice John Roberts didn’t manage to be in the majority in every single 5-4 decision this term. Today, Justice Neil Gorsuch wrote for a majority of five (joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan), with Roberts writing for the four dissenters and Justice Clarence Thomas appending a brief solo dissent to assert that the court lacked jurisdiction to hear this case at all.

The court held today that land in northeastern Oklahoma reserved for the Creek Nation since the 19th century remains a reservation for the purpose of a federal statute that gives the federal government exclusive jurisdiction to commit certain major crimes committed by “[a]ny Indian” in “the Indian country.” The court’s holding means that state courts in Oklahoma had no jurisdiction to convict petitioner Jimcy McGirt, who is an enrolled member of the Seminole Nation of Oklahoma, of three serious sexual offenses that took place on the reservation.

The decision is a stunning reaffirmance of the nation’s obligations to Native Americans. It confirms the existence of the largest tract of reservation land in the country, about 19 million acres encompassing the entire eastern half of Oklahoma. The court took almost two full terms to decide this question. It first heard oral argument in a predecessor case, Sharp v Murphy (in which Gorsuch was recused), in the fall of 2018, before restoring Murphy to the calendar this term and then, instead of hearing re-argument, granting and hearing oral argument in May on the same question in McGirt (in which Gorsuch could participate). (In a one-sentence, unsigned opinion, the court today also disposed of Murphy, ruling in favor of inmate Patrick Murphy “for the reasons stated in” McGirt.) In substance, the court “hold[s] the government to its word,” reaffirming the continuing existence of the reservations that the federal government promised to the Five Civilized Tribes in the 1830s to persuade them to give up their ancestral lands in Georgia and Alabama and walk along the Trail of Tears to the lands at issue.

As Indian law cases go, the dispute in this one is easy to understand: whether the land once granted to the Creek Nation as a reservation retains that status. The majority of five says that it does, because Congress has not adopted any single statute that explicitly terminates that status; the dissenters say that it does not, reasoning that the total body of congressional intrusions in the area, culminating in the development of eastern Oklahoma as a predominantly non-Native American area, adequately illustrates Congress’ intent to disestablish the reservation.

Gee, what happened to strict constructionism there?  

Gorsuch begins by documenting the clarity of the historical record establishing the creation of the Creek reservation: a series of treaties and statutes that, among other things “solemnly guarantied” the land to the tribe, “forever set apart as a home for said Creek Nation,” “no portion [of which] shall ever be embraced or included within … any Territory or State.”


For Gorsuch, though, the allotment process sheds no light on the outcome of the case: “For years, States have sought to suggest that allotments automatically ended reservations, and for years courts have rejected the argument.” Rather, “this Court has explained repeatedly that Congress does not disestablish a reservation simply by allowing the transfer of individual plots.” Gorsuch acknowledges that the proponents of allotment hoped that, after the land was parceled out, the reservations eventually would be abolished, but he concludes that “to equate allotment with disestablishment would confuse the first step of a march with arrival at its destination.”

Finding allotment insufficient to show disestablishment, Gorsuch turns next to the many “other ways Congress intruded on the Creek’s promised right to self-governance.” He discusses those at some length, but, as with allotment, his overarching view is that the various “laws represented serious blows to the Creek … [b]ut, just as plainly, … left the Tribe with significant sovereign functions over the lands in question.”


There is a notable symmetry in the articulation of a strong voice in support of Native Americans by the only justice with roots in the western part of the nation. Observers of the court know that it frequently has given short shrift to the promises and obligations that Congress has undertaken for Native Americans, and that a decision so firmly vitalizing the nation’s obligations to Native Americans does not come along every year. It will be interesting to watch in the years to come to see whether Gorsuch continues to stake out an interest in the topic.

I do not know what this means from a functional perspective, except that members of the various tribes encompassed by the reservation will not have to be prosecuted in a federal court.

However, there might be significant changes in the regulatory and tax regimes as a result of this, as well as potential renegotiation of energy leases in the area.

It’s Come to This

Congress is looking to returning to fines and imprisonment for witnesses who refuse to testify before oversight committees. (Mostly fines)

This really has not been done in about 75 years, but the increasing assertions of the “Unitary Executive” and the complete capture of the Department of Justice by Donald Trump, leaves only “Inherent Contempt” as alternative:

House Democrats increasingly frustrated by the Trump administration for defying subpoenas are proposing legislation that would ratchet up their power to punish executive branch officials who reject their requests.

Rep. Ted Lieu (D-Calif.), and five other members of the House Judiciary Committee, unveiled a rule change Monday to formalize and expand Congress’ power of “inherent contempt” — its authority to unilaterally punish anyone who defies a subpoena for testimony or documents.

Though Congress has long had inherent contempt power, it has been in disuse since before World War II. This power, upheld by courts, has included the ability to levy fines and even jail witnesses who refuse to cooperate with congressional demands.


[California Democrat Ted] Lieu’s proposal only focuses on monetary penalties. It would establish a process for negotiations between Congress and executive branch officials when disputes arise over testimony and records. The measure would allow federal agencies to lodge objections to congressional requests, and it would permit the president to weigh in and assert any applicable privileges. The measure would also establish a process for holding recalcitrant officials in contempt, including hearings before the full House in which the subject would be permitted to present a defense and would face questions from lawmakers on the House floor.
If the House supports contempt after such a proceeding, it would then vote a second time to impose a financial penalty of up to $25,000. The penalty would be delayed for 20 days to allow for continued negotiations before subsequent penalties may be imposed up to an aggregate of $100,000. The measure would also bar taxpayer dollars from being used to cover any fines assessed through this mechanism.

I would note that while this is rather aggressive by the standards of recent history, but given the level of  disdain shown by recent Presidents in general, and the Trump administration in particular, to Congressional oversight, this is weak tea.

Only the Moderate Democrats Want the Surveillance State

My guess is that so-called “Moderate Democrats” are the only ones who want an expansive FISA renewal because they are the ones who get the big bucks from members of the US state security apparatus and and their corporate profiteers.

We now have Donald Trump, the most right Republicans in the House, and progressive Democrats are cooperating to shut down the FISA renewal, while the Democratic leadership is determined to make sure that there the intelligence-industrial complex gets what they want.

What can I say, but “Puck Felosi”.  This needs to stop:

Speaker Nancy Pelosi and top Democrats postponed a vote on Wednesday to reauthorize key parts of the federal surveillance program known as FISA, after an 11th hour revolt by Republicans and progressive Democrats.

Democrats have not decided when or if they will take up the bill. The legislation had broad bipartisan support in the Senate, but lost support from GOP lawmakers after sudden resistance from President Donald Trump and the Justice Department.

“We haven’t made that decision,” House Majority Leader Steny Hoyer (D-Md.) said in an interview late Wednesday as he left Pelosi’s office.

It was clear for much of Wednesday that Democrats lacked the votes, with few, if any, Republicans willing to buck Trump and his veto threat. Without them, the House’s delicate coalition fractured and Democrats found themselves without the support to pass it on their own. The Congressional Progressive Caucus, which has roughly 100 members, formally opposed the bill, virtually guaranteeing that Democrats would need GOP votes.


The latest rupture began over a proposal by Wyden to block the FBI from collecting the web browsing data of Americans. Wyden’s plan failed by a single vote in the Senate, but Lofgren negotiated with House leaders to bring it up for a House vote when the chamber considered the broader bill.

But Lofgren also negotiated a deal with House Intelligence Chairman Adam Schiff to tweak the language to narrow the restrictions on the FBI, a deal that infuriated Wyden and left him and other progressives calling for the defeat of the measure.

By, “Narrow the restrictions,” they mean, “Emasculate.”

The FBI, and the CIA, and the rest of these three letter organizations have no interest in protecting your civil rights, and they will go to whatever line we set, and cross that line if they think that they can get away with it, but folks like Pelosi and Hoyer don’t care, they just want their money for their PACs.

Clever Hans Speaks*

For as long as people have been driving, cops have been imagining reasons to pull them over and coerce them into “voluntary” searches. The Supreme Court’s Rodriguez decision (sort of) put an end to extended stops — the ones that start with a perceived violation that’s dragged out until a drug dog arrives. Unfortunately, that decision only removed part of the equation. The Supreme Court’s Heien decision made it possible for cops to rely entirely on pretext to engage in fishing expeditions by saying cops only had to think they witnessed a traffic violation, rather than actually be accurate about the laws they’re tasked with enforcing.

Cops are still trying to bring drug dogs to routine traffic stops. The Rodriguez decision is generally taken to mean cops just need to be quicker about rustling up a K-9 unit. Cops love drug dogs because they allow cops to perform the warrantless searches they want to perform. The drug dog’s handler can call literally any movement by the dog an “alert,” turning normal dog behavior into “probable cause” for a search. It doesn’t help that the dogs are rewarded for every alert and given no positive reinforcement for failing to find anything interesting.

Courts have historically been willing to cut drug dogs as much slack as they cut their law enforcement officer handlers. Subjective interpretations of anything an animal does to please its master is considered close enough to Fourth Amendment compliance to justify warrantless searches. Every so often, a court will question the reliability of the dog or the intent of its handler, but those are anomalies.

This case, via FourthAmendment.com, is an amazing anomaly. Not only did the court choose to hear from experts on drug dog training and handling, it actually went so far as to call into question the reliability of every drug dog in the state.


The defense brought in an expert witness, Dr. Mary Cablik, who has two decades of drug dog training experience working with POST units in Nevada and California. Cablik said the absence of “blind” training is a real problem. If the dog is only tested in areas where the handler knows drugs will be found, the dog carries this knowledge on to the real world and will continue to search for nonexistent drugs until it gives its handler what they want: an “alert.”


Utah’s training does not produce reliable drug dogs. Officer Moore’s drug dog is possibly more unreliable than most, but this order makes it clear everyone who’s been subjected to a drug dog sniff should challenge it. The state POST training has produced little more than handy Fourth Amendment circumvention tools for officers to use at will. This court is having none of this and refuses to condone the deployment of dogs that are basically trained to please their handlers, rather than actually detect narcotics.

This is a feature, not a bug.

Dogs, in traffic stops at least, are not intended to detect drugs, they are intended to provide a corrupt pretext for a search.

Dogs are eager to please their handlers, and when the only training that a dog receives, as was the case here, was where the trainer knows what they have to find, it does not train a dog as an impartial detector, it makes the dog into a fraud routine.

This continues, because this is what the police want.

*The Clever Hans Effect, named after a horse that cued into its handler’s subconscious body to create the illusion that it could do complex math.

Yeah, He Went There………

Donald Trump’s lawyer William Consovoy just claimed that a sitting president cannot be investigated even if he were to shoot someone on 5th Avenue.

It should be noted that there is no precedent for this position. Even the OLC opinion only forbids indictments, not investigations:

A federal appeals panel on Wednesday expressed skepticism that President Trump had a right to block state prosecutors in Manhattan from enforcing a subpoena that sought his personal and corporate tax returns for the last eight years.

The judges on a three-member panel in Manhattan peppered a lawyer for Mr. Trump with questions, expressing skepticism about the president’s argument that he was immune from criminal investigation. A lower court judge earlier this month rejected Mr. Trump’s claim, which has not previously been tested in the courts.

Carey R. Dunne, the Manhattan district attorney’s general counsel, cited the president’s famous claim that he could shoot someone on Fifth Avenue without losing political support.

Mr. Dunne asked what would happen in that extreme scenario? “Would we have to wait for an impeachment proceeding to be initiated?” he said.

Later, Judge Denny Chin posed the Fifth Avenue hypothetical to William S. Consovoy, a lawyer for Mr. Trump, and asked for his view.

“Local authorities couldn’t investigate? They couldn’t do anything about it?” Judge Chin asked, adding: “Nothing could be done? That’s your position?”

“That is correct. That is correct,” Mr. Consovoy said.

So, in the aforementioned hypothetical, they could not collect the gun, or look at the ballistics on the bullet, or collect surveillance video from the area according to Trump’s lawyer.

Mr. Vance’s office in late August subpoenaed Mr. Trump’s accounting firm, Mazars USA, for his personal and corporate tax returns dating to 2011.

The district attorney had been investigating whether any New York State laws were broken when Mr. Trump and his company, the Trump Organization, reimbursed Michael D. Cohen, the president’s former lawyer and fixer, for payments he made to the pornographic film actress Stormy Daniels, who had said she had an affair with Mr. Trump.


Mr. Trump went into federal court last month, trying to block the district attorney’s subpoena. The president argued that the Constitution prevented a sitting president from being “investigated, indicted or otherwise subjected to criminal process.”

It should be noted that the OLC opinion is only binding on the US Department of Justice, not state prosecutors, and it;s argument had nothing to do with the constitution, they claimed that an indictment would be too disruptive to government.

Even if there were a separation of powers argument, that would not apply to state courts, and it would not apply to investigations.

Rather unsurprisingly, Robert Bork (יִמַּח שְׁמוֹ) was at the center of this 1973 memo, and it illustrates the utter moral and constitutional bankruptcy of the concept of the “Unitary Executive”.

It should be noted that this opinion ignored a very clear precedent, the arrest of Ulysses S. Grant for speeding and driving recklessly in 1872, but Bork and his ilk were never one to allow precedent, or the law, or the actual text of the Constitution, inform their arguments.

Rule 1 of Trumpland: Trump Will Always Choose the Dick Move

Rule 2 of Trumpland is: See Rule 1.

Trump has announced his intention to declare a state of emergency to fund his border wall:

President Trump will declare a national emergency as early as Friday to bypass Congress and build his long-promised wall along the nation’s southwestern border even as he agreed to sign a spending package that does not finance it, White House officials said Thursday.

The announcement came just minutes before voting began on the spending measure, which then cleared both houses, ending a two-month war of attrition that closed much of the federal government for 35 days and threatened a second shutdown on Friday. The Senate passed it 83 to 16, and the House followed later in the evening, 300 to 128.

But if he declares a national emergency to access billions of dollars for his wall, Mr. Trump could instigate a constitutional clash over who controls the federal purse and test the bounds of presidential authority in a time of divided government. Democrats and some Republicans instantly condemned the move, with some vowing to challenge it through legislation and lawsuits.

I expect this to find its way to court, but given that 5 of the 9 Supreme Court justices are big supporters of the “Unitary Executive Theory” when the President is a Republican, so I expect another corrupt 5-4 decision supporting Trump.

Don’t worry about checks and balances though, they will reverse themselves as soon as a Democrat is back in office.

Good News, Everyone!

A proposal to create an independent redistricting commission will appear on the November ballot, the Michigan Supreme Court ruled late Tuesday in a closely watched case.

The 4-3 decision is rife with political implications in Michigan, where Republicans have maintained or grown congressional and legislative advantages since last drawing the state’s political boundaries in 2011.

Volunteers with the Voters Not Politicians committee gathered nearly 400,000 valid signatures to put the anti-gerrymandering plan before voters. The Board of State Canvassers certified the group’s petitions, but the proposal was challenged as being overly broad.

In a split decision, the state’s highest court ruled that voter-initiated proposals are permissible if they do not “significantly alter or abolish the form or structure of our government, making it tantamount to creating a new constitution.”

The redistricting proposal “surpasses these hurdles,” Justice David Viviano wrote in the majority opinion. He was joined by fellow Republican appointee Beth Clement and Democratic-nominated Justices Bridget McCormack and Richard Bernstein.


The proposal would create a 13-member redistricting commission that would be composed of four Democrats, four Republicans and five independent members who vow they are not affiliated with any major political party. The secretary of state would select the commission members.

More of this.

Pass the Popcorn

I have been arguing for 9 years that there is an anti-corruption principle embedded in the Constitution. Today, Judge Peter J. Messitte adopted that principle writing “As Professor Teachout has noted, ‘corruption, in the American tradition, does not just include blatant bribes..”

— Zephyr Teachout (@ZephyrTeachout) July 25, 2018

This is a happy constitutional scholar

A judge has ruled that the emoluments lawsuit against Donald Trump can proceed:

A federal judge on Wednesday rejected President Trump’s latest effort to stop a lawsuit that alleges Trump is violating the Constitution by continuing to do business with foreign governments.

The ruling, from U.S. District Judge Peter J. Messitte in Greenbelt, Md., will allow the plaintiffs — the attorneys general of Maryland and the District of Columbia — to proceed with their case, which says Trump has violated little-used anti-corruption clauses in the Constitution known as emoluments clauses.

This ruling appeared to mark the first time a federal judge had interpreted those constitutional provisions and applied their restrictions to a sitting president.

If the ruling stands, it could bring unprecedented scrutiny to Trump’s businesses — which have sought to keep their transactions with foreign states private, even as their owner sits in the Oval Office.

Messitte’s 52-page opinion said that, in the modern context, the Constitution’s ban on emoluments could apply to Trump — and that it could cover any business transactions with foreign governments where Trump derived a “profit, gain or advantage.”

“This includes profits from private transactions, even those involving services given at fair market value,” Messitte wrote.

I am intensely amused by this, though I am not as over the moon about this as Zephyr Teachout,who has maintained that anti-corruption is actually a prominent foundation of the US Constitution.

It will be fun to watch Donald Trump squirm over this.

Appeals Court: 1 — Mike Pence: 0

In what is a remarkably uncontroversial upholding of legal precedent, the 7th U.S. Circuit Court of Appeals in Chicago just ruled that Mike Pence’s Indiana anti-abortion law is unconstitutional:

Indiana’s ban on “selective abortions,” which was signed into law in 2016 by then-Gov. Mike Pence (R), is unconstitutional, a federal appeals court ruled on Thursday.

The law banned women from having abortions based on the gender, race or disability of the fetus.

The law imposes an “undue burden” on a woman’s right to get an abortion, said the 7th U.S. Circuit Court of Appeals in Chicago.

“The Supreme Court has been clear: the State may inform a woman’s decision before viability, but it cannot prohibit it,” Judge William Bauer wrote.

Similar bills passed or proposed in other states have specifically tried to ban abortions based on a Down syndrome diagnosis.

Good.  Let’s hope that there will be more defeats of the Talibaptists nationwide.

I Gotta Figure that Kennedy Called Bullsh%$ on this Appeal

The other 4 conservatives on the court are political hacks, so the US Supreme Court’s refusal to review the Pennsylvania Supreme Court’s redistricting decision was driven by Kennedy ensuring that they would lose, and they did not want to fight a losing battle.

The Supreme Court on Monday turned down a request from Republican legislative leaders in Pennsylvania to block a redrawn congressional map that creates more parity between the political parties in the state.

The practical impact is the 2018 elections are likely to be held under a map much more favorable to Democrats, who scored an apparent victory last week in a special election in a strongly Republican congressional district. The 2011 map that has been used this decade has resulted in Republicans consistently winning 13 of the state’s 18 congressional seats.

Monday’s action was the second time that the court declined to get involved in the partisan battle that has roiled Pennsylvania politics. The commonwealth’s highest court earlier this year ruled that a map drawn by Republican leaders in 2011 “clearly, plainly and palpably” violated the free-and-equal-elections clause of the Pennsylvania Constitution.

The PA court decision was rooted entirely on the Pennsylvania state constitution.

In fact, it could be argued that the Pennsylvania opinion was carefully drafted to avoid any possibility of a federal issue , and as such a Supreme Court review would be highly unusual.

Of course, that didn’t stop Kennedy in Bush v. Gore, but I think that the sh%$ that he got over that may have been a learning experience for him.

November in Pennsylvania should be rather interesting.

This is Brilliant

Trump is trying to add a question to the 2020 Census about citizenship status, likely for a court challenge to reduce Congressional representation for blue states by depressing immigrant responses.

Thankfully, this process is rather involved.

Gerard Magliocca looks at the question, and comes up with a brilliant question to add to the census:

I have a separate suggestion. If we are going to add new questions to the census about citizenship, then I would propose reviving one that was asked in the 1870 census. The modern version would ask all citizens above the age of 18 whether their right to vote has ever been “denied . . . or in any way abridged, except for participation in rebellion or other crime.” This is language from of Section Two of the Fourteenth Amendment, which states that if states deny or abridge suffrage to presumptively eligible voters to excess then their representation in Congress shall be reduced.

It’s never gonna happen, but that made my day.

I Thought That We Shot Redcoats to Stop This

It appears that prosecutors in Washington D.C. were determined to revive the worst aspects of British treason law, which the founding fathers explicitly repudiated in Article III, Section 3, of the United States Constitution. (British treason law included, “

British treason law could involve, among other things, “Some association with rioting.”

That whole “Association with Rioting” thing?

Federal prosecutors were attempting to use that against inauguration day protestors, and today, all 6 defendants (over 100 others remain charged) were acquitted of all charges:

The first six people to face trial in Inauguration Day protests that turned destructive in the nation’s capital were acquitted of all charges, a victory not only for the defendants but also for advocates who argued the government overreached in its effort to prosecute more than 200 people arrested as they marched through the city.

Following a nearly four-week trial and two full days of deliberations, a D.C. Superior Court jury delivered not-guilty verdicts Thursday on multiple charges of rioting and destruction of property.

The defendants — including a nurse for cancer patients, a freelance photographer and a college student — joined throngs of protesters who took to the streets Jan. 20 to protest Donald Trump’s election. Prosecutors said the six were among a group that cut a violent swath through 16 blocks of the city, smashing businesses’ windows, tossing newspaper boxes into the street and damaging a limousine. Authorities tallied the damage at more than $100,000.


Jennifer Armento, 38, a Philadelphia woman who was among the six, said the verdict “shows the country that the jury was unwilling to do what the government wanted them to do, which was criminalize dissent.”


From the start, defense attorneys said their clients and most others in the group of about 500 were peacefully protesting, while only a handful peeled off and became violent. They criticized police for failing to identify those people and said officers unfairly herded a group of about 200 and charged them with rioting.

During his closing argument last week, attorney Steven J. McCool, who represented one of the men on trial, appealed to jurors to protect the “rights of free speech.”


Prosecutors told jurors there was no evidence the six people on trial were personally involved in the vandalism but argued that they chose to remain with the group, essentially providing cover for those who caused the damage.

In his closing argument, Assistant U.S. Attorney Rizwan Qureshi told jurors the group “tore up your city, putting people in danger.”

He presented the jury with the analogy of a bank robbery, likening the defendants to a getaway driver while comparing those who smashed windows to the robber in the bank.

Seriously, the prosecutor’s argument is literally unAmerican.

This prosecution was a contemptible attempt to criminalize legal protest.


While I oppose boycotts of Israel, and I think that many in the BDS movement are objectively antisemitic, the proposal in the Senate to criminalize boycotts against Israel is an assault on the very idea of civil rights:

Both of New York’s Senators have signed on to a bill that would criminalize any attempt by Americans to boycott Israel, according to a new report.

According to The Intercept, Senators Chuck Schumer and Kirsten Gillibrand are among 43 U.S. Senators who have co-sponsored the Anti-Israel Boycott Act, a bill that the ACLU wote is “antithetical to free speech protections enshrined in the First Amendment” in a letter to lawmakers urging them to oppose the bill.

The Senate bill appears to target the Boycott, Divest and Sanction movement that seeks to pressure Israel to end its occupation of the West Bank and Gaza Strip through economic isolation. Under the terms of the bill, a pair of U.S. laws that prohibit U.S. citizens from supporting a boycott request from a foreign government against an ally of the United States would be updated to specifically prohibit Americans from supporting international boycott efforts against Israel.

Violators of the law “would be subject to a minimum civil penalty of $250,000 and a maximum criminal penalty of $1 million and 20 years in prison” according to the ACLU’s letter.

Seriously, it’s embarrassing to have to go all Schoolhouse Rock on members of the US Senate.

This full metal pander crap needs to end.

A letter from the ACLU clearly describes just how flagrantly unconstitutional this bill is.

Well What Do You Know. Obama May Have Spied on Trump………

And thousands of other Americans as well, as is revealed in a recent FISA court decision excoriating the practices of the NSA under the Obama administration:

U.S. intelligence agencies conducted illegal surveillance on American citizens over a five-year period, a practice that earned them a sharp rebuke from a secret court that called the matter a “very serious” constitutional issue.

The criticism is in a lengthy secret ruling that lays bare some of the frictions between the Foreign Intelligence Surveillance Court and U.S. intelligence agencies obligated to obtain the court’s approval for surveillance activities.


The document, signed by Judge Rosemary M. Collyer, said the court had learned in a notice filed Oct. 26, 2016, that National Security Agency analysts had been conducting prohibited queries of databases “with much greater frequency than had previously been disclosed to the court.”

It said a judge chastised the NSA’s inspector general and Office of Compliance for Operations for an “institutional ‘lack of candor’ ” for failing to inform the court. It described the matter as “a very serious Fourth Amendment issue.”

The Fourth Amendment protects people from unreasonable searches and seizures by the government, and is a constitutional bedrock protection against intrusion.

Parts of the ruling were redacted, including sections that give an indication of the extent of the illegal surveillance, which the NSA told the court in a Jan. 3 notice was partly the fault of “human error” and “system design issues” rather than intentional illegal searches.


Data captured from both upstream and downstream sources are stored in massive databases, available to be searched when analysts need to, often months or as much as two years after the captures took place.

The prohibited searches the court mentioned involved NSA queries into the upstream databanks, which constitute a fraction of all the data NSA captures around the globe but are more likely to contain the emails and phone calls of people in the United States.

Federal law empowers the NSA and CIA to battle foreign terrorist actions against the United States by collecting the electronic communications of targets believed to be outside the country. While communications of U.S. citizens or residents may get hoovered up in such sweeps, they are considered “incidental” and must be “minimized” – removing the identities of Americans – before broader distribution.

The court filing noted an NSA decision March 30 to narrow collection of “upstream” data within the United States. Under that decision, the NSA acknowledged that it had erred in sweeping up the communications of U.S. citizens or residents but said those errors “were not willful.” Even so, the NSA said it would no longer collect certain kinds of data known as “about” communications, in which a U.S. citizen was merely mentioned.

The NSA announced that change publicly on April 28, two days after the court ruling, saying the agency would limit its sweeps to communications either directly to or from a foreign intelligence target. That change would reduce “the likelihood that NSA will acquire communications of U.S. persons or others who are not in direct contact with one of the agency’s foreign intelligence targets.”

The court document also criticized the FBI’s distribution of intelligence data, saying it had disclosed raw surveillance data to sectors of its bureaucracy “largely staffed by private contractors.”

This is a particularly scathing ruling when one considers the generally lackadaisical approach to the 4th amendment taken by the FISA court.

There is a reason why I call Barack Obama, “Worst Constitutional law professor ever.

This is why we need checks and balances.

This Would Be Ironic

When the Supreme Court declined to overturn Obamacare, they did restrict it somewhat, by declaring that the provision of the law that required states to expand Medicaid or leave the program.

The Court found that it was too coercive.

Legal experts are saying that this ruling would likely apply to Jeff Sessions’ attempts to defund sanctuary cities:

The Trump administration announced this week that it will make good on its January threat to claw back funding from so-called sanctuary cities that limit information-sharing with federal immigration officials. Yet hundreds of legal experts say the move would itself be illegal—in part due to a court ruling Republicans cheered just a few years ago.

In 2012, the Supreme Court forced the Obama administration to make Medicaid expansion voluntary for states instead of mandatory, ruling that when the federal government “threatens to terminate other significant independent grants as a means of pressuring the States to accept” a federal policy, it is unconstitutionally coercive.

Conservative groups that celebrated this victory over “infringement on state sovereignty by the federal government” may now be dismayed to learn that it could throw a wrench into the Trump administration’s current plan to punish sanctuary cities.

I am amused.

The 4th Amendment Doesn’t Become Null and Void Just Because You Have an Easier Time Violating It

The title is a comment from the Techdirt article quotes GC for the DNI, Robert Litt, who claims that since computers can automatically scan your email easily, the 4th amendment does not apply:

Reuters has an interesting piece looking at how many experts are concerned that mass surveillance efforts by the federal government are making a mockery of the 4th Amendment. The focus of the article is on the scan of all Yahoo email that was revealed back in October, but it certainly touches on other programs as well. The concern is easily summarized by Orin Kerr:

“A lot of it is unrecognizable from a Fourth Amendment perspective,” said Orin Kerr, a former federal prosecutor and Georgetown University Law School expert on surveillance. “It’s not where the traditional Fourth Amendment law is.”

But, have no fear, the General Counsel of the Office of the Director of National Intelligence, Robert Litt, says there’s a reason for that, and it’s all technology’s fault. We’ve covered Litt and his somewhat nutty views on the 4th Amendment and surveillance in the past, so the following isn’t new. But Litt’s main defense of basically all of the NSA’s various abuses and mocking of the 4th Amendment is “it’s technology’s fault.” He’s quoted twice in the article, and both times, it’s all about the tech. First up, an argument that the traditional 4th Amendment doesn’t apply, because technology:

“Computerized scanning of communications in the same way that your email service provider scans looking for viruses – that should not be considered a search requiring a warrant for Fourth Amendment purposes,” said Litt.

Later he is mentioned as making a similar argument. 

ODNI’s Litt wrote in a February Yale Law Review article that the new approach was appropriate, in part because so much personal data is willingly shared by consumers with technology companies. Litt advocated for courts to evaluate “reasonableness” by looking at the entirety of the government’s activity, including the degree of transparency.

Indeed, we’ve pointed to Litt making similar arguments many times in the past and it all comes down to “Well, people share this stuff with Facebook/Google/Yahoo, etc.,” so what’s the big deal?

Litt’s argument is morally reprehensible and intellectually vacuous:  It is pure bullsh%$.

Choosing to use Google or Yahoo, with all of its attendant privacy compromises is a choice.

The NSA or the FBI spying on us is not a choice.  It is the government imposing itself into our private business.

The constitution is SUPPOSED to make the job of the state security apparatus more difficult.

Live with it, or take a job making pastry.