The "COURTS"

In today's environment, there is a lot of activity going on on the Courts - ALL of them. Here, we will report on various Court cases that will be of great significance in America.

Supreme Court Impeachment Decision
January 12, 2019

Source; https://www.dailyconservative.com/conservative-news/supreme-court-impeachment-decision.htm
West Virginia lawmakers tried to impeach corrupt state judges. The West Virginia Supreme Court halted their efforts. Now the legislature is appealing to the U.S. Supreme Court to overturn that ruling.The state is pinning its hopes on the U.S. Constitution’s “guarantee clause,” which provides that “the United States shall guarantee to every state in this union a republican form of government.” The legislature’s petition reads:
“The subject decision of the Supreme Court of West Virginia eviscerates the state’s right to a republican form of government by elevating the judicial branch to a supreme branch of government with the power to adjudicate and restrain the legislative branch in the exercise of its obligations regarding impeachment proceedings.”
This will be an uphill battle, considering that the Supreme Court has typically declined to hear guarantee clause cases, and that it tends to yield to state courts on matters of state law. There’s also the big hulking elephant in the room, which is that if the Court were to rule that judicial review, or even just one particular usage of judicial review, is contrary to a republican government, this would bring into question the Court’s own unrestrained power to overrule Congress.

Democrats and the Rule of Lawyers
Live by pettifoggery, die by pettifoggery.

https://spectator.org/democrats-and-the-rule-of-lawyers/

Why We Shouldn’t Trust An Originalist Supreme Court To Secure Our Liberties

http://thefederalist.com/2018/07/11/shouldnt-trust-originalist-supreme-court-secure-liberties/?utm_source=The+Federalist+List&utm_campaign=df5d5da69f-RSS_The_Federalist_Daily_Updates_w_Transom&utm_medium=email&utm_term=0_cfcb868ceb-df5d5da69f-83785165

Latest Supreme Court Ruling on Trump's Travel Ban;
http://thefederalist.com/2018/06/27/the-four-dissenting-votes-in-the-travel-ban-ruling-are-a-dangerous-sign/?utm_source=The+Federalist+List&utm_campaign=86c28b57f4-RSS_The_Federalist_Daily_Updates_w_Transom&utm_medium=email&utm_term=0_cfcb868ceb-86c28b57f4-83785165

Changes in Funding. Supreme Court Ruling;

http://thehill.com/regulation/court-battles/394371-court-deals-blow-to-public-sector-unions-ruling-against-fair-share?userid=18110

http://www.foxnews.com/politics/2018/06/27/us-supreme-court-deals-blow-to-labor-unions-ruling-5-4-that-public-sector-unions-may-not-collect-mandatory-fees-from-non-members.html

Rising tide of judicial tyranny threatens our republic – time for Congress to act
https://www.bizpacreview.com/2018/08/03/rising-tide-of-judicial-tyranny-threatens-our-republic-time-for-congress-to-act-660593?utm_source=Newsletter&utm_medium=BPR%20Email&utm_campaign=DMS#

Why should states that protect illegal immigrants be rewarded with more political power?

Alabama has filed an unprecedented but little-noticed lawsuit against the U.S. Census Bureau. If the state wins, it could have major political ramifications and restore fundamental fairness in political representation in Congress.
Alabama is arguing that by including illegal immigrants in its count of the population, the Census Bureau deprives the state – and other states with low numbers of illegal immigrants – of representation in the U.S. House of Representatives, as well as votes in the Electoral College that determine who is elected president.
Conversely, the lawsuit argues, the practice of counting illegal immigrants in the census gives states that protect them (California, for example) seats and votes they are not entitled to have.
The 14th Amendment to the Constitution provides that representatives in the House “shall be apportioned among the several States … according to their respective Numbers,” with the “Numbers” determined by “counting the whole number of persons in each State.”
After every census, House seats are reapportioned according to the population of each state. Electoral College votes are reapportioned according to the number of each state’s congressional representatives.
The number of representatives in the House – 435 – has been fixed by law since 1910. So as Alabama says in its complaint, apportionment is “a zero sum proposition: Each state’s gain is another state’s loss.”
Alabama argues that by including illegal immigrants in apportionment, congressional seats and Electoral College votes are unfairly distributed.
Based on the 2010 Census, Louisiana, Missouri, and Ohio each lost a seat in the House and a vote in the Electoral College, while Montana failed to gain a seat and an electoral vote. By contrast, California gained two House seats and two Electoral College votes. And Florida and Texas each gained one seat and one vote.
As a result, says Alabama in its lawsuit: “four House seats and four Electoral College votes were redistributed by the inclusion of illegal aliens in the apportionment base in the 2000 Census.”
Alabama claims that including illegal immigrants in the 2020 Census will likely cause it to lose a congressional seat and an Electoral College vote. It says this “will rob the State of Alabama and its legal residents of their rightful share of representation.”
This also violates the “one person, one vote” equal representation standard of the 14th Amendment. According to Alabama, “the gains from including illegal aliens in the apportionment base flow to citizens who live in state with large numbers of illegal aliens.”
Why? Because it means that “in a state in which a large share of the population cannot vote, those who do vote count more than those who live in states where a larger share of the population is made up of American citizens.”
This results in “representational inequality” by devaluing the vote of Alabama’s legal residents. This redistribution of political power “disincentivizes states with large illegal alien populations from cooperating with federal immigration authorities (lest they lose political power that comes with additional representatives and votes in the Electoral College),” Alabama argues.
Moreover, including illegal immigrants in the census “punishes states who (sic) do cooperate with federal immigration authorities in the identification and removal” of illegal aliens, Alabama’s lawsuit states.
Alabama’s final complaint is monetary. Including illegal immigrants in the census, it says, will likely cause it to lose its fair share of the almost $700 billion distributed annually by the federal government in grants and other funds.
The key to Alabama’s case is the definition of “persons” who should be counted and thus used in apportionment. Alabama argues that the term “persons” was understood at the “time of the founding and when the 14th Amendment was ratified” to mean the “inhabitants” of a state.
Furthermore, “in the public law of the founding era, the term ‘inhabitant’ did not encompass unlawful residents because inhabitance was a legal status that depended upon permission to settle granted by the sovereign nation in which an alien wished to reside,” Alabama argues.
In other words, “persons” does not include individuals who are in the U.S. illegally, without the permission of the federal government.
The “Residence” rule adopted by the Census Bureau for the 2020 census stipulates that foreign nationals will be counted and allocated to the state where their “usual residence” is located, regardless of whether they are legally present.
Alabama argues that the rule is unconstitutional. Moreover, it claims, the rule violates the Administrative Procedure Act because it is “arbitrary and capricious” and exceeds the Census Bureau’s statutory authority.
The last time the Supreme Court had a significant case involving the census was in 1999 in Department of Commerce v. U.S. House of Representatives. The justices concluded that the Census Bureau had to do an actual count of the population – it could not use statistical sampling.
In 2015 the Supreme Court held that states could use total population numbers – which includes illegal immigrants – in drawing the boundaries of legislative districts. But that case was about redistricting, not apportionment.
Does Alabama have a case? That will largely depend on whether it can convince the Supreme Court that its understanding of the historical definition of “persons” in the apportionment clause of the Constitution is correct. This is not an issue the Court has addressed before.
But regardless of the ultimate resolution of this novel legal argument, Alabama is right about the unfairness of the current system. Illegal immigrants, by definition, have no right to be in this country. It is unjust to allow states to gain a political advantage over other states by flouting federal immigration law, as California has done with its sanctuary policies and obstruction of federal enforcement.

Source; http://www.foxnews.com/opinion/2018/06/04/why-should-states-that-protect-illegal-immigrants-be-rewarded-with-more-political-power.html?cmpid=NL_opinion

THE COURTS USURPING POWERS NOT GIVEN IN THE CONSTITUTION

We are no longer alone in our assertions that the courts usurped powers not given in Article III. Maybe we can now start restoring the Republic form and end Constitution limit creeping?

https://kb.osu.edu/dspace/bitstream/handle/1811/65260/OSLJ_V44N3_0611.pdf

US Supreme Court, Divided, Buys Into Wider Legalized Sports Betting

The justices in Murphy v. National Collegiate Athletic Association found the 1992 Professional and Amateur Sports Protection Act infringed on state sovereignty. The decision could transform sports and sports gambling from coast to coast.
By Tony Mauro | May 14, 2018 at 10:40 AM

The U.S. Supreme Court on Monday struck down the 1992 federal law that bans most states from licensing sports betting, opening the door to legalized sports gambling nationwide.

Link to Case file PDF; ( https://drive.google.com/file/d/1muSdrhXZ8uLeGrZgR0jhyJx7Hv-3Q7g8/view )

Source: The National Law Journal Breaking News <nationallawjournal@alm.com> http://link.law.com/public/13211739

Removing Federal Judges Without Impeachment and Other Considerations.

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Source; http://www.yalelawjournal.org/forum/removing-federal-judges-without-impeachment

FORUM:
Removing Federal Judges Without Impeachment17 OCT 2006
Saikrishna Prakash and Steven D. Smith

Behold Judge Jailbird. Duly convicted of receiving bribes or tax evasion, the not-so-honorable judge now makes his chambers in a cell. But until Congress manages to impeach and convict him, Judge Jailbird continues to draw his six-figure salary and remains a judge. A grotesque spectacle, you say, but one mandated, alas, by the constitutional guarantee that federal judges can be removed solely by impeachment? Well, . . . no. Contrary to the orthodoxy, nothing in the Constitution mandates that impeachment be the exclusive method for removing misbehaving judges.
I. The Constitutional Text
The Constitution authorizes the impeachment of federal judges, but it nowhere says that they can be removed only through impeachment. Nor do the Constitution’s relevant provisions easily lend themselves to any such reading.
Articles I, II, and III respectively define the tenures, including the conditions that can terminate tenure, for the principal legislative, executive, and judicial officials. For example, Article I provides that a Senator’s tenure terminates upon the expiration of a six-year term, by “Resignation, or otherwise,” or (in the case of a Senator appointed to fill a vacancy) upon “the next Meeting of the [state] Legislature.” Similarly, Article III conditions a judge’s tenure on continued “good Behaviour”; the clear implication is that misbehavior can terminate a judge’s stay in office.
In addition to other tenure-terminating contingencies, Article II, Section 4 provides for impeachment as an alternative means of removal: “The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.” This additional means of removal does not negate or displace other tenure-terminating provisions. Everyone concedes this point with respect to executive officials; no one thinks that because a Secretary of State can be impeached, he or she can be removed only through impeachment. There is no reason for a different conclusion with respect to judges. In fact, the impeachment provisions do not single out or even expressly mention judges: like Secretaries of State, judges are simply included in the general category of “civil officers of the United States.”
Nor does Article III’s good behavior provision suggest that it merely cross-references Article II’s impeachment provision. To the contrary, the “good Behaviour” requirement is manifestly not identical to the standard for impeachment: “treason, bribery, or other high crimes and misdemeanors.” The separate standards corroborate what the natural reading of the separated impeachment and “good Behaviour” provisions already suggests, namely, that these provisions refer to independent tenure-terminating contingencies.
Those who think judges may only be removed by impeachment might suppose that history reveals that “good Behaviour” was a term of art that meant something like “tenure for life defeasible only by impeachment.” History actually proves that good behavior was independent of impeachment.
II. Independent Concepts: “Good Behaviour” Tenure and Impeachment
In English law, good behavior (quamdiu se bene gesserit) was a familiar legal term commonly used to describe tenure in such items as property, offices, employments, and licenses. The term meant that possession of the item would continue until the holder was shown, in a judicial proceeding, to have misbehaved. A grant during good behavior was distinguished from appointment during pleasure (durante bene placito). Thus, someone granted tenure during pleasure could be removed at will by the grantor, but someone granted tenure during good behavior could be removed only upon being convicted of misbehavior in a judicial proceeding. This understanding was affirmed over and over again during the seventeenth and eighteenth centuries. Contrary to what one might suppose, good behavior tenure was not something peculiar to judges, or even to public officials. Private parties could and did grant good behavior tenure.
As we have documented in the latest print issue of this Journal, the same understandings prevailed in English colonies. On the eve of the Revolutionary War, for example, John Adams engaged in a spirited public debate with William Brattle about the tenure of judges. Notwithstanding their other differences, both men agreed that if a judge was appointed during good behavior, then he could be removed only (as Adams said) upon a “hearing and trial, and an opportunity to defend himself before a fuller board, knowing his accuser and accusation.”
Impeachment, by contrast, was a procedure by which someone could be criminally prosecuted in a legislature. Impeachment prosecutions were not exclusively limited to government officials, and the punishment following a successful prosecution did not consist only of removal from office; rather, an impeached person might suffer a variety of sanctions, including execution.
During the seventeenth and early eighteenth centuries, impeachment was not a procedure for determining misbehavior. In England, for example, the preferred procedure for adjudicating judicial misbehavior was the writ of scire facias. Likewise, when private parties with good behavior tenure were accused of misbehaving, those accusations were judged in the ordinary courts and not before Parliament.
Across the sea, some Americans in the late eighteenth century began to regard impeachment as a possible procedure for determining whether someone had misbehaved. Nonetheless, Americans clearly did not confuse or conflate impeachment with removal for breach of a good behavior condition. Some state constitutions expressly allowed for removal of officials with good behavior tenure in the ordinary courts, and some granted good behavior tenure even though they did not provide for impeachment at all.
The Constitution limited the scope of impeachment (by providing that the punishment for impeachment would be limited to removal from office) but it contains no hint that the Founders meant to modify the long-established meaning of good behavior tenure. To the contrary, the adoption of the Constitution was bookended by federal laws that reflected the traditional understanding. The 1787 Northwest Ordinance granted territorial judges good behavior tenure. Given that the Continental Congress was a unicameral legislature without an impeachment power, this act surely did not contemplate that impeachment would be the method of determining misbehavior. And the 1790 Crimes Act provided that a judge convicted of taking a bribe would, by virtue of the conviction, be “forever . . . disqualified to hold any office of honour, trust or profit under the United States.” In other words, conviction alone would operate to deprive the judge of office.
III. Judicial Investigations and Prosecutions
Our reading of Article III’s grant of good behavior tenure may be hard for some to swallow, especially those with muscular conceptions of judicial independence.Others, however, may embrace a more historically grounded and nuanced account of judicial independence.For example, members of Congress recently proposed an independent Inspector General for the judicial branch. Some prominent judges, including Justice Ruth Bader Ginsburg, have hinted that there is something seriously amiss with this proposal. After all, how can judges remain independent if they stand in constant fear of an Inspector General investigation?
There is nothing constitutionally suspect about government officials investigating allegations of judicial misconduct and then making reports to Congress and the executive branch. Under any reading of the Constitution, the political branches have the authority to investigate and sanction judges. The chambers of Congress can impeach, convict, and remove based on proper evidence of high crimes and misdemeanors. And whatever Congress decides, the executive may prosecute any judges whom it believes has violated the law. The proposed Inspector General would merely make it easier to prosecute and convict miscreant judges. Moreover, under our reading of good behavior, information gathered by the Inspector General also could be used to prove in court that a judge had misbehaved and had thereby violated the terms of her tenure.
But what about the cherished independence of federal judges? Too much emphasis has been laid on the independence of judges and not enough on the Constitution’s provisions that promote judicial accountability, which include the grant of life tenure subject to termination for misbehavior. Judges do enjoy a certain type of independence—they cannot be punished for the judgments they issue. But the Constitution makes clear that federal judges do not have an absolute or a boundless independence. If an Inspector General would further judicial accountability, that fact counts in favor of the Inspector General proposal.
IV. Conclusion
Congress clearly can adopt measures to help the chambers impeach and convict. But Congress can go further and adopt statutes that remove judges upon proof of judicial misbehavior. Any such procedures would have to afford an accused judge the due process rights associated with conviction for a serious offense. But a procedure meeting those demanding requirements could culminate in removal—without the need for a wholly independent impeachment procedure.
This analysis is based on the assumption that the Constitution should be construed according to its original meaning. Not everyone accepts that assumption. It may be that our political community has come to prefer that impeachment serve as the exclusive method for removing judges. We may prefer that Judge Jailbird continue to draw his salary until Congress gets around to impeaching him. But if we opt for that conclusion, we should do so deliberately and with eyes open--not on the mistaken supposition that the impeachment-only position is forced upon us by the Constitution itself.
Professor Prakash is the Herzog Research Professor of Law at the University of San Diego. Professor Smith is the Warren Distinguished Professor of Law at the University of San Diego.
Preferred citation: Saikrishna Prakash & Steven D. Smith, Removing Federal Judges Without Impeachment, 116 Yale L.J. Pocket Part 95 (2006), http://yalelawjournal.org/forum/removing-federal-judges-without-impeachment.
Removing Federal Judges Without Impeachment accompanies Saikrishna Prakash & Steven D. Smith, How To Remove a Federal Judge, 116 Yale L.J. 72 (2006).

Insights by Mangus Colorado on this subject;

There is an additional way Congress can remove Judges - The Constitution permits such other courts as Congress may believe needed. Now Read Article III which defines where and what what courts can do?

Congress can then say only federal courts inside state boundaries are to be on Federal land and handle only Article III limit cases. That would allow them to close down all federal district courts. No courts then there is no need for Judges good or bad behavior?

AV SITE EDITORS NOTE:
My opinion is such that any Judge that uses their position to legislate away or in any way block the Constitutional Authority of any President in matters of "Clear Cut" National Security should be removed from their position after a non-partisan review by consensus of Congress should any American be harmed as a result of their decision.The following Meme clarifies my personal beliefs on the subject

latest SCOTUS Ruling on Trump's Travel Ban;
http://thefederalist.com/2018/06/27/the-four-dissenting-votes-in-the-travel-ban-ruling-are-a-dangerous-sign/?utm_source=The+Federalist+List&utm_campaign=86c28b57f4-RSS_The_Federalist_Daily_Updates_w_Transom&utm_medium=email&utm_term=0_cfcb868ceb-86c28b57f4-83785165

Does SCOTUS Get to Decide What's Constitutional?

Source; https://fee.org/articles/does-scotus-get-to-decide-whats-constitutional/
Aother debate on the proper role of the judiciary has broken out on the interweb. Last time, the debate was over “judicial deference” vs. “judicial engagement.” This one is about “judicial supremacy.”
Michael Paulsen kicked off this round right here with his blog post “The myth of judicial supremacy,” in which he claimed that what he called “the recurrent myth of ‘judicial supremacy’ in constitutional interpretation” was “wrongly ascribed to the framing generation and to Marbury v. Madison.”
Then came Ed Whelan, who began his review of Paulsen’s book this way: “We live in a legal culture besotted by the myth of judicial supremacy. According to this myth, the Constitution means whatever five Supreme Court justices claim it means, and all other governmental actors are duty-bound to abide by that supposed meaning.”
Responding to this has been excellent posts by Michael Ramsey, Ilya Somin and Evan Bernick. Ed then replied here and here.
I won’t reproduce the debate here, and merely wish to make a conceptual point and offer a bit of the historical evidence that I presented in my 2004 article, The Original Meaning of the Judicial Power.
Judicial Equality, not Supremacy
In some respects “judicial supremacy” – like “judicial activism” – is a deliberately loaded pejorative term. I agree entirely with the “departmentalist” vision identified by Paulsen and Whelan that each constitutional actor has a duty to adhere to the written Constitution that is independent of the opinions of other constitutional actors.
So, if the Congress independently decides that a particular measure is beyond its enumerated powers or violates the rights of the people, it may decline to pass such a law regardless on whether the Supreme Court would uphold it. I made this argument to the Senate Judiciary Committee in its hearing about the constitutionality of the Affordable Care Act (video of my opening statement is here).
Likewise the president may veto a measure that he believes is unconstitutional, independent of the views of Congress or the courts, as Andrew Jackson did with the bill rechartering the second national bank (his veto message is here).
In this respect, the other branches are not “bound” by the views of the judiciary.
So, under this departmentalist vision, the Congress and President must agree that a measure is constitutional before it can become law (unless a supermajority of Congress overrides a veto).
Conversely, either the Congress or the President may prevent a law from being applied to the citizenry if either thinks the law is unconstitutional.
But if the Congress and President both agree that a measure is constitutional, must the judicial branch defer to that assessment?
In my view, the answer is “no.”
As a separate and co-equal branch of government, the judiciary gets to render its opinion on the constitutionality of a law, but only if the other branches first decide the measure is constitutional.
Because, as Evan Bernick points out, the judiciary’s concurrence that a law is constitutional is a function of its equality to the other branches, not its supremacy. And the judiciary only has the option to nullify or invalidate a law – it does not have the power to enact it.
This is why judicial nullification is not “legislating from the bench.” Judicial negation is not legislation. Only Congress has the “legislative power” to enact the law in the first instance. Should it refuse to enact it, the other branches have no proper constitutional power to do it in their stead. (This is why some of the recent “phone and pen” exercises of executive power are so constitutionally problematic.)
In short, the judicial power to invalidate a law because it is unconstitutional is a manifestation of judicial equality, not judicial supremacy. But this necessarily means that the law is void unless the judiciary concurs, and this judgment is then “binding” on the other branches, just as the other branches refusal to enact or sign a law is binding on the judiciary.
But is this view a modern invention? Hardly.
Evidence from the Founding
As Philip Hamburger demonstrates in his book Law and Judicial Duty, the term “power of judicial review” is an anachronism. At the founding, it was thought that judges had a duty to follow the law, and that the Constitution was a law that was higher than any statute, however popular.
The term “power of judicial review” was not used in Marbury v. Madison, but was invented by progressives in the 20th century, as they sought to undermine the legitimacy of the duty of judges to invalidate unconstitutional laws. They claimed that, unlike our duties, our “powers” should be exercised with “discretion” and “restraint.” But that is another and longer story.
To this, let me add some of the evidence I present at greater length in my article:
Several members of the Constitutional Convention in Philadelphia explicitly assumed that the power to nullify unconstitutional legislation resided in the judiciary even before they settled on the particular wording of the various clauses. Several statements were made in the context of a proposed power of Congress to nullify state laws. Roger Sherman of Connecticut argued that a such a power was “unnecessary, as the Courts of the States would not consider as valid any law contravening the Authority of the Union…”
James Madison of Virginia favored such a negative because states “will accomplish their injurious objects before they can be . . . set aside by the National Tribunals.” He then cited the example of Rhode Island, where “the Judges who refused to execute an unconstitutional law were displaced, and others substituted, by the Legislature….”
Gouverneur Morris of Pennsylvania argued that the legislative negative was unnecessary because “A law that ought to be negatived will be set aside in the Judiciary department.” No one in this discussion disputed the power of the judiciary to set aside unconstitutional laws passed by states.
Nor did anyone question that federal judges would have the same power to set aside unconstitutional legislation from Congress. Much is made by critics of judicial review of the Convention’s rejection of the proposed council of revision, inferring from this refusal an intention of the framers that the judiciary defer to legislative will.
They rarely mention, however, that the most discussed and influential reason for rejecting the council of revision proposal was the existence of a judicial negative on unconstitutional legislation. So powerful is this and other evidence that it strongly supports the conclusion that judicial nullification was included within the original public meaning of the “judicial power.”
During a debate concerning whether judges should be included with the executive in a council empowered to revise laws, the comments of several delegates revealed their assumption that federal judges had the inherent power to hold federal laws unconstitutional.
Luther Martin of Maryland stated that “as to the Constitutionality of laws, that point will come before the Judges in their proper official character. In this character they have a negative on the laws.”
George Mason of Virginia observed that “in their expository capacity of Judges they would have one negative…. They could declare an unconstitutional law void.”
While he favored the idea of the council, James Wilson of Pennsylvania conceded that there “was weight in this observation” that “the Judges, as expositors of the Laws would have an opportunity of defending their constitutional rights.”
The assumption that judges possess the inherent power to nullify unconstitutional laws crops up in a variety of other contexts during the Convention. For example, Gouverneur Morris favored ratification of the Constitution by the people in convention because legislative ratification of the new Constitution was prohibited by the terms of the Articles of Confederation. “Legislative alterations not conformable to the federal compact, would clearly not be valid. The Judges would consider them as null & void.”
James Madison argued that a difference between a league or confederation among states and a constitution was precisely its status as binding law on judges. “A law violating a treaty ratified by a pre-existing law, might be respected by the Judges as a law, though an unwise or perfidious one. A law violating a constitution established by the people themselves, would be considered by the Judges as null & void.”
Hugh Williamson of North Carolina argued that an express prohibition on ex post facto laws by states “may do good here, because the Judges can take hold of it.”
What is striking in light of these statements is that, throughout the duration of the Convention, I could find no one who disputed the existence of a judicial power to nullify unconstitutional laws. No one.
I did find one delegate, John Mercer, who didn’t like the idea. But then delegate John Dickenson of Delaware replied that, although he was “was strongly impressed with the remark of Mr. Mercer as to the power of the Judges to set aside the law,” he said that he was “at a loss to know what expedient to substitute.”
Gouverneur Morris took issue with Mercer more sharply, stating that he could not agree that the judiciary “should be bound to say that a direct violation of the Constitution was law. A control over the legislature might have its inconveniences. But view the danger on the other side.”
What concerned the framers most was not the existence of the judicial power of nullification, but the likely weakness of the judiciary in holding the line. In this concern, they were prescient.
As we saw with the challenge to the ACA, courts more often find a way to “defer” to the majoritarian branches than to stand in the way. For example, James Wilson thought that Congress should have the power to nullify state laws because “the firmness of Judges is not itself sufficient.”
So, the “myth of judicial supremacy” is itself a myth.
The “judicial power” to nullify unconstitutional laws was no invention of John Marshall in Marbury but was well accepted at the time the Constitution was adopted. All assumed that courts could render a law “void” – indeed that this was their duty – and their judgment would necessarily be binding on the other branches.
Nor does this power make the judiciary “supreme.” It merely recognizes the concurrence of a coequal judiciary as the last line of defense of the rights retained by the people.
This post first appeared at the Volokh Conspiracy, where Professor Barnett blogs.

SCOTUS denies jury secrecy when racism expressed, altering 6th Amendment interpretation

Source; https://www.rt.com/usa/379675-scotus-pena-rodriguez-decision-sixth/
A Colorado man convicted of unlawful sexual conduct will get a new trial, after the Supreme Court ruled that states must now take secret jury deliberations into account when they find evidence of racial and ethnic bias.On Monday, a divided Supreme Court ruled 5-3 in the case of Miguel Angel Peña-Rodriguez, who was convicted of three misdemeanors for harassing and trying to grope two teenage sisters in a dark racetrack bathroom. Peña-Rodriguez was sentenced to two years’ probation, but still maintains that he is innocent.
After the verdict, two other jurors submitted sworn statements, saying that one juror, who is referred to as “HC” in court documents, made a number of biased statements about Peña-Rodriguez behind the closed doors of the jury room.
According to the affidavits by the two jurors, HC said that Peña-Rodriguez was guilty “because he’s Mexican, and Mexican men take whatever they want.” The jurors also described how HC knew Peña-Rodriguez was guilty, because, according to him, “nine times out of 10 Mexican men were guilty of being aggressive toward women and young girls.”
HC also called into question the testimony of Peña-Rodriguez’s main witness, because he was “an illegal.”
Peña-Rodriguez says that HC’s bias views deprived him of a fair trial, but under Colorado law, those statements fall under the state’s “no impeachment” rule, which bars jurors from testifying about statements made during deliberations. Similar rules are found in one form or another in every state, as well as the District of Columbia.
Justice Anthony Kennedy was joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan in the decision to send Peña-Rodriguez’s case back to the lower courts, so they could consider the two jurors’ testimony in the case against Peña-Rodriguez.
Justice Kennedy wrote the opinion of the majority, acknowledging the importance of the “no impeachment rule,” which he said allows jurors to engage in “full and vigorous discussion,” without being “harassed or annoyed by litigants seeking to challenge the verdict,” and to give “stability and finality to verdicts.”
Kennedy, however, ruled that in certain cases, “blatant racial prejudice is antithetical to the functioning of the jury system and must be confronted in egregious cases like this one, despite the general bar of the no-impeachment rule."
Kennedy says the ruling is limited to instances of racial bias, but even with those limitations, the Sixth Amendment will now extend to post-trial evidence of racial bias from the jury.
In dissent, Justice Samuel Alito was joined by Chief Justice John Roberts and Justice Clarence Thomas, saying that while the decision was well-intentioned, it “not only pries open the door; it rules that respecting the privacy of the jury room, as our legal system has done for centuries, violates the Constitution.”
“This is a startling development,” Alito wrote, “and although the court tries to limit the degree of intrusion, it is doubtful that there are principled grounds for preventing the expansion of today’s holding.”

Jury Nullification

This is a must see for educational purposes about the Courts Authority, and Legal Processes Impacting on Constitutional Rights. The case was reviewed by the supreme court and the verdict was set aside on the technicality surrounding Jury Nullification by a judge, and what appears to be improper actions by a Judge and Prosecutor over First Amendment Rights by charging the pastor with Jury Tampering for handing out information that is public knowledge found in libraries and on the web.
Source of Article; http://www.wnd.com/2016/08/prosecutor-wont-let-go-of-jury-savvy-pastor/
Other Sources within the article; http://superstore.wnd.com/Libertys-Secrets-The-Lost-Wisdom-of-Americas-Founders-Hardcover and http://law2.umkc.edu/faculty/projects/ftrials/zenger/nullification.html and http://www.greatlakesjc.org/

Reception of English Common Law in the American Colonies

William & Mary Law Review
Reception of English Common Law in the American Colonies
William B. Stoebuck
http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=2851&context=wmlr
Repository Citation William B. Stoebuck, Reception of English Common Law in the American Colonies, 10 Wm. & Mary L.
Rev. 393 (1968), http://scholarship.law.wm.edu/wmlr/vol10/iss2/7
Copyright c 1968 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. http://scholarship.law.wm.edu/wmlr

Radio: Debate On Article V, The Call For A Convention Of The States:
The fight is on folks and the fear mongers are everywhere. That is a good sign if we stay active and post the truth all over the web. We are the safest and most easily explained to restore States rights and power and to make DC small and weak except for defense.

http://thefederalist.com/2016/02/23/radio-debate-on-article-v-the-call-for-a-convention-of-the-states/?utm_source=The+Federalist+List&utm_campaign=0249bec2b8-RSS_The_Federalist_Daily_Updates_w_Transom&utm_medium=email&utm_term=0_cfcb868ceb-0249bec2b8-83785165

8 Best Quotes From Clarence Thomas’s Texas Abortion Dissent

Source; http://thefederalist.com/2016/06/27/8-best-quotes-from-clarence-thomass-texas-abortion-dissent/

June 27, 2016 By Bre Payton
The Supreme Court ruled in favor of abortion proponents today, striking down a Texas state law that required abortion clinics to adhere to the same health codes as outpatient facilities and that all abortionists must have hospital admitting privileges.
In the majority opinion, the justices who ruled in favor of abortion advocates in Whole Woman’s Health v. Hellerstedt argued Texas’s laws were in contention with a 1992 Supreme Court ruling (Casey) in which the court had determined that laws restricting abortions must not place an “undue burden” on a woman seeking to terminate her pregnancy.
Justice Clarence Thomas wrote a dissenting opinion ripping apart the court’s tendency to bend over backwards to accommodate abortion. Here are eight of the sickest burns in that opinion.
1. The court’s interpretation of “undue burden” is confusing as hell.
Today’s opinion does resemble Casey in one respect: After disregarding significant aspects of the Court’s prior jurisprudence, the majority applies the undue-burden standard in a way that will surely mystify lower courts for years to come.

2. Judges aren’t medical experts — even if they try to appoint themselves as such.
Moreover, by second-guessing medical evidence and making its own assessments of ‘quality of care’ issues. . . the majority reappoints this Court as ‘the country’s ex officio medical board with powers to disapprove medical and operative practices and standards throughout the United States.’ . . . And the majority seriously burdens States, which must guess at how much more compelling their interests must be to pass muster and what ‘commonsense inferences’ of an undue burden this Court will identify next.
3. Arbitrary standards mess up constitutional law.
As the Court applies whatever standard it likes to any given case, nothing but empty words separates our constitutional decisions from judicial fiat.
4. The court just makes stuff up to get what it wants.
The illegitimacy of using ‘made-up tests’ to ‘displace longstanding national traditions as the primary determinant of what the Constitution means’ has long been apparent. . . The Constitution does not prescribe tiers of scrutiny. The three basic tiers— ‘rational basis,’ intermediate, and strict scrutiny—’are no more scientific than their names suggest, and a further element of randomness is added by the fact that it is largely up to us which test will be applied in each case.’. . . But the problem now goes beyond that. If our recent cases illustrate anything, it is how easily the Court tinkers with levels of scrutiny to achieve its desired result.
5. Muzzling free speech? No problem. Defining marriage? Good luck.
Likewise, it is now easier for the government to restrict judicial candidates’ campaign speech than for the Government to define marriage—even though the former is subject to strict scrutiny and the latter was supposedly subject to some form of rational-basis review.
6. Made-up rights don’t trump those enumerated in the Constitution.
The Court has simultaneously transformed judicially created rights like the right to abortion into preferred constitutional rights, while disfavoring many of the rights actually enumerated in the Constitution. But our Constitution renounces the notion that some constitutional rights are more equal than others. A plaintiff either possesses the constitutional right he is asserting, or not—and if not, the judiciary has no business creating ad hoc exceptions so that others can assert rights that seem especially important to vindicate. A law either infringes a constitutional right, or not; there is no room for the judiciary to invent tolerable degrees of encroachment.
7. There are too many legal exceptions for made-up rights.
Our law is now so riddled with special exceptions for special rights that our decisions deliver neither predictability nor the promise of a judiciary bound by the rule of law.
8. Some may call the decision a victory, but it’s a loss for America.
Today’s decision will prompt some to claim victory, just as it will stiffen opponents’ will to object. But the entire Nation has lost something essential. The majority’s embrace of a jurisprudence of rights-specific exceptions and balancing tests is ‘a regrettable concession of defeat—an acknowledgement that we have passed the point where ‘law,’ properly speaking, has any further application.’
The decision is the most significant abortion ruling since the Carhart ruling in 2007, which upheld a federal ban on partial-birth abortions.
Photo Mark Wilson/Getty
Bre Payton is a staff writer at The Federalist. Follow her on Twitter.

New documents uncovered: Scalia reveals his true opinion of an Article V Convention of States

Contrary to what the John Birch Society has posted; New documents uncovered: Scalia reveals his true opinion of an Article V Convention of StatesPosted by Convention of States Project on February 19, 2016When state legislatures consider whether to apply for an Article V convention for proposing amendments, the primary argument in opposition is invariably that such an application poses an intolerable risk of a “runaway convention,” i.e., a convention that proposes amendments outside the scope of the subject matter for which it was called. This question was considered by a panel of distinguished scholars (Paul Bator, Walter Berns, Gerald Gunther and Antonin Scalia) at an AEI forum held on May 23, 1979. The transcript of this forum has just been posted online (hat tip: Josh Blackman and Adam White).
Three panelists agreed that while the matter was not free from doubt, the best view of the Constitution is that an Article V convention may be limited as a matter of law. One panelist, Professor Gunther, contended that such a limitation was merely a “moral exhortation” that was not legally binding. Tr. 8.
Then-Professor Scalia agreed with Professors Bator and Berns that Article V was best interpreted to permit a limited convention. See Tr. 12 (“There is no reason not to interpret it to allow a limited call, if that is what the states desire.”) (Scalia); see also Tr. 7-8, 11 (Bator); Tr. 4-5 (Berns).
Scalia, however, mostly concentrated his remarks on debunking the practical reasoning of the “runaway convention” argument. Acknowledging the theoretical possibility that an Article V convention could propose an extreme or unpalatable amendment, he noted that this possibility could equally be employed as a reason against convening Congress (or any legislative authority). Tr. 5. The right question to ask is “how high we think the risk is and how necessary we think the convention is.” Id.
As far as the risk, Scalia made clear he had “no fear” that “extreme proposals” would come out of an Article V convention. Tr. 5. The risk of a convention exceeding its mandate “was not much of a risk.” Tr. 23. After all: “Three-quarters of the states would have to ratify whatever came out of the convention; therefore, I don’t worry about it too much.” Id.
On the need for a convention, Scalia noted:
The founders inserted this alternative method of obtaining constitutional amendments because they knew the Congress would be unwilling to give attention to many issues the people are concerned with, particularly those involving restrictions on the federal government’s own power. The founders foresaw that and they provided the convention as a remedy. If the only was to get that convention is to take this minimal risk, then it is a reasonable one.
Tr. 6.
He went on to explain that the argument against calling a convention effectively gives Congress a monopoly over amendments, contrary to the Framers’ intent: “The alternative is continuing with a system that provides no means of obtaining a constitutional amendment, except through the kindness of the Congress, which has demonstrated that it will not propose amendments—no matter how generally desired—of certain types.” Tr. 12. Indeed, Congress “likes the existing confusion, because that deters resort to the convention process.” Id.
Scalia left no doubt as to how he weighted the risk and reward in calling a balanced budget amendment convention: “The Congress knows that the people want more fiscal responsibility, but it is unwilling to oblige it. A means comparable to [California’s] Proposition 13 is needed at the federal level. The Constitution had provided it. If the only way to clarify the law, if the only way to remove us from utter bondage to the Congress, is to take what I think to be a minimal risk on this limited convention, then let’s take it.” Tr. 13.
Finally, Scalia put the point in the broader context of a constitutional system that was badly out of kilter: “I am not sure how long a people can accommodate to directives from a legislature it feels is no longer responsive, and to directives from a life-tenured judiciary that was never meant to be responsive, without losing its will to control its own destiny.” Tr. 18.
Though uttered 37 years ago, these words don’t seem the least bit out of date today.

Source; http://www.conventionofstates.com/new_documents_uncovered_scalia_reveals_true_opinion?utm_source=Convention+of+States+Project&utm_campaign=ed5a4ccfa2-COS_Weekly_Roundup_2_24_16_A&utm_medium=email&utm_term=0_45196125c1-ed5a4ccfa2-216087253

ADDENDUM To Above Article;
Scalia’s Surprising Advice for Who His Replacement Should Be By Dr. Richard Land | February 26, 2016 | 2:23 PM EST

Source;http://cnsnews.com/commentary/dr-richard-land/scalias-surprising-advice-who-his-replacement-should-be?ref=yfp

Less than a week after the death of Supreme Court Justice Antonin Scalia, politicians and legal minds alike were in an uproar about who the next Supreme Court justice should be—as well as when he or she should be appointed, and by whom.
Surprisingly, Scalia gave some advice on his own replacement in this summer’s controversialObergefell v. Hodges Supreme Court decision. And now, as Justice Scalia lies in repose Scalia’s insightful words ring true that a diverse Supreme Court should benefit—and represent—all Americans.
Justice Scalia left the nation a virtual legal memo with some unexpected advice on qualities we should look for in a future successor on the nation’s highest court, mainly religious, educational and geographic diversity. In Justice Scalia’s strongly worded dissent in last year’s Obergefell-Hodges decision, which mandated same-sex marriage in all 50 states, Justice Scalia said the following: “To allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.”
What did Justice Scalia mean? Well, the current Court, prior to Justice Scalia’s death, consisted of nine justices; four of the justices were from New York City, and if you count Justice Alito from suburban New York and New Jersey, five of the justices come from greater New York. Of the other four, two were from California—Kennedy and Breyer—and one was from Georgia—Thomas—with just one justice, Chief Justice Roberts, from the vast Midwest of the United States.
Educationally, there are more common threads—four went to Harvard, three to Yale, one to Cornell and one to Stanford, and three received their undergraduate degrees from Princeton.
And this lack of diversity doesn’t stop there. Justice Scalia also explained in his dissent that the Supreme Court had “not a single Evangelical Christian, a group that comprises about one quarter of Americans, or even a Protestant of any denomination.” Before Scalia’s death, six Catholics and three Jews made up the court. Such an elitist group of judges, Scalia argued, was very likely to be dangerously out of step with the broader culture of the country they seek to serve. Indeed.
Justice Scalia did not believe that the Supreme Court should legislate from the bench. His point, however, was that if they were going to insist on legislating from the bench, they needed to be far more representative of the country religiously, educationally and geographically.
We should heed the late Justice Scalia’s sound and excellent advice. The next justice should be a Protestant from the vast middle of the country, anywhere from Texas in the South to North Dakota in the North or anywhere in between. And, although a Princeton graduate myself, I join Justice Scalia in strongly urging that the next justice not be a graduate of an Ivy League law school or an Ivy League college.
Do we really believe there are no strong candidates to be Supreme Court Justices who can be found in the vast middle of the country that would alter this dangerous imbalance religiously, educationally and geographically on our Supreme Court? Of course there are many qualified candidates—extremely qualified candidates—and they need to be located and found by the President, nominated by him and confirmed by our senators. This is not about quotas or litmus tests; this is a about a critically important government institution that is dangerously out of balance with the country it took an oath to serve. This imbalance needs to be corrected, and it needs to be corrected immediately—religiously, educationally, geographically.
Dr. Richard Land is president of Southern Evangelical Seminary and former president (1988-2013) of The Ethics & Religious Liberty Commission, the Southern Baptist Convention’s official entity assigned to address social, moral and ethical concerns, with particular attention to their impact on American families. He has taught as a visiting or adjunct professor for several seminaries and has authored or edited more than 15 books.

Very good video on Justice Scalia.
Reflecting on Scalia's Legacy
2/22/2016On Friday, February 19th, members of the Delaware Law faculty reflected on the jurisprudence of the late U.S. Supreme Court Justice Antonin Scalia. Watch video of the event below:

http://delawarelaw.widener.edu/about/news-events/news/article/314 Copy and paste link into browser if it won't activate properly.

COMMENTARY
Why Texas Is Wrong in the ‘One Person, One Vote’ Case

By Ilya Shapiro
This article appeared on Washington Post (Online) on October 20, 2015.
The Supreme Court’s “one person, one vote” case, Evenwel v. Abbott, is theoretically easy because nobody can seriously argue that large disparities in eligible voters is unproblematic. If you have two districts with roughly equal populations but with 10 voters in the first and 100 in the second, that’s a problem: Votes in the first district are worth 10 times those in the second.

It’s the same issue that the Supreme Court faced in Reynolds v. Sims — the 1964 case that established “one person, one vote.” It occurs in other countries as well: The British Parliament had to pass the Reform Act of 1832 to remedy the “rotten borough” situation, in which some members of the House of Commons represented thousands of people while others represented literally nobody.

When you cast a vote, you don’t expect that your vote may count for less than someone else’s merely because of where they live. But that’s what Texas is trying to do: The state drew its districts to equalize total populations, ignoring how many of those people are eligible voters. (This is what nearly all states do, though 10 have constitutional or statutory provisions that exclude particular groups — such as foreigners, military personnel and inmates — from districting calculations.) The result is a plan that would create one Senate district with 388,000 eligible voters and another with 611,000. Those in the first district would have votes that count for double the votes of those in the second.

The 14th Amendment’s Equal Protection Clause — “no state shall … deny to any person within its jurisdiction the equal protection of the laws” — doesn’t require absolutely equal districts, but surely ratios approaching 2-to-1 go beyond even the constitutional wiggle room allowed by the Reynoldsprecedent. If a state really only has to care about total population, it could theoretically create districts in which only 10 percent, 5 percent or even 1 percent of residents were eligible voters — and those tiny groups of voters would each be able to choose one representative all the same.

“When you cast a vote, you don’t expect that your vote may count for less than someone else’s merely because of where they live.”

Texas is arguing that it should be able to draw its voting districts based on total population because that’s how the Constitution apportions seats in the House of Representatives. But that so-called “federal analogy” is the same losing argument that Alabama used in 1964. Alabama defended in Reynolds a system that gave one senator to each county, which mirrored the U.S. Senate’s treatment of states and resulted in similar population disparities.

The Court rightly rejected that logic, arguing that “the federal analogy [is] inapposite and irrelevant to state legislative districting schemes.” In other words, just because the federal government does it, doesn’t mean the states can. After all, the states are “separate and distinct governmental entities which have delegated some, but not all, of their formerly held powers to the single national government,” while state districts aren’t sovereign entities.

Today, the Court is presented with a new version of the federal analogy. Texas argues that because the Constitution allocates House seats by total population, states should draw districts that do the same for their own legislatures.

This version of the federal analogy works no better than the last one. Section 2 of Article I of the Constitution and Section 2 of the 14th Amendment show that the total population standard should apply to separate states that possess legal autonomy otherwise — not least in defining for themselves how to select their members of Congress.

Moreover, since states define voting rights for themselves, a rule based on eligible voters would provide states with a perverse incentive to expand suffrage as much as possible (for example, by lowering voting age to 12) and thus artificially acquire more representatives. But a county can’t lower its voting age in a bid to gain more state senators. The primary justification for the federal rule — preventing states from “gaming” congressional apportionment — simply doesn’t exist at the state level.

Indeed, the true federal analogy is to the part of the 14th Amendment that removes disenfranchised former slaves from their states’ apportionment total, so as not to give more voting power in Congress to states that denied freedmen the right to vote. This provision confirms the principle that non-voting persons aren’t “virtually” represented by their neighbors’ votes, so they shouldn’t be used to give those neighbors more power.

Federal apportionment therefore has no role in shaping how states create their districts. Under “one person, one vote,” every eligible person should be able to vote and each vote should be equal.

Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute and filed an amicus brief supporting the Evenwel plaintiffs.

Can the President Ignore the Supreme Court?FEE.ORG|BY RANDY BARNETT

Another debate on the proper role of the judiciary has broken out on the interweb. Last time, the debate was over “judicial deference” vs. “judicial engagement.” This one is about “judicial supremacy.”

Michael Paulsen kicked off this round right here with his blog post “The myth of judicial supremacy,” in which he claimed that what he called “the recurrent myth of ‘judicial supremacy’ in constitutional interpretation” was “wrongly ascribed to the framing generation and to Marbury v. Madison.”

Then came Ed Whelan, who began his review of Paulsen’s book this way: “We live in a legal culture besotted by the myth of judicial supremacy. According to this myth, the Constitution means whatever five Supreme Court justices claim it means, and all other governmental actors are duty-bound to abide by that supposed meaning.”

Responding to this has been excellent posts by Michael Ramsey, Ilya Somin and Evan Bernick. Ed then replied here and here.

I won’t reproduce the debate here, and merely wish to make a conceptual point and offer a bit of the historical evidence that I presented in my 2004 article, The Original Meaning of the Judicial Power.

Judicial Equality, not Supremacy

In some respects “judicial supremacy” – like “judicial activism” – is a deliberately loaded pejorative term. I agree entirely with the “departmentalist” vision identified by Paulsen and Whelan that each constitutional actor has a duty to adhere to the written Constitution that is independent of the opinions of other constitutional actors.

So, if the Congress independently decides that a particular measure is beyond its enumerated powers or violates the rights of the people, it may decline to pass such a law regardless on whether the Supreme Court would uphold it. I made this argument to the Senate Judiciary Committee in its hearing about the constitutionality of the Affordable Care Act (video of my opening statement is here).

Likewise the president may veto a measure that he believes is unconstitutional, independent of the views of Congress or the courts, as Andrew Jackson did with the bill rechartering the second national bank (his veto message is here).

In this respect, the other branches are not “bound” by the views of the judiciary.

So, under this departmentalist vision, the Congress and President must agree that a measure is constitutional before it can become law (unless a supermajority of Congress overrides a veto).

Conversely, either the Congress or the President may prevent a law from being applied to the citizenry if either thinks the law is unconstitutional.

But if the Congress and President both agree that a measure is constitutional, must the judicial branch defer to that assessment?

In my view, the answer is “no.”

As a separate and co-equal branch of government, the judiciary gets to render its opinion on the constitutionality of a law, but only if the other branches first decide the measure is constitutional.

Because, as Evan Bernick points out, the judiciary’s concurrence that a law is constitutional is a function of its equality to the other branches, not its supremacy. And the judiciary only has the option to nullify or invalidate a law – it does not have the power to enact it.

This is why judicial nullification is not “legislating from the bench.” Judicial negation is not legislation. Only Congress has the “legislative power” to enact the law in the first instance. Should it refuse to enact it, the other branches have no proper constitutional power to do it in their stead. (This is why some of the recent “phone and pen” exercises of executive power are so constitutionally problematic.)

In short, the judicial power to invalidate a law because it is unconstitutional is a manifestation of judicial equality, not judicial supremacy. But this necessarily means that the law is void unless the judiciary concurs, and this judgment is then “binding” on the other branches, just as the other branches refusal to enact or sign a law is binding on the judiciary.

But is this view a modern invention? Hardly.

Evidence from the Founding

As Philip Hamburger demonstrates in his book Law and Judicial Duty, the term “power of judicial review” is an anachronism. At the founding, it was thought that judges had a duty to follow the law, and that the Constitution was a law that was higher than any statute, however popular.

The term “power of judicial review” was not used in Marbury v. Madison, but was invented by progressives in the 20th century, as they sought to undermine the legitimacy of the duty of judges to invalidate unconstitutional laws. They claimed that, unlike our duties, our “powers” should be exercised with “discretion” and “restraint.” But that is another and longer story.

To this, let me add some of the evidence I present at greater length in my article:

Several members of the Constitutional Convention in Philadelphia explicitly assumed that the power to nullify unconstitutional legislation resided in the judiciary even before they settled on the particular wording of the various clauses. Several statements were made in the context of a proposed power of Congress to nullify state laws. Roger Sherman of Connecticut argued that a such a power was “unnecessary, as the Courts of the States would not consider as valid any law contravening the Authority of the Union…”

James Madison of Virginia favored such a negative because states “will accomplish their injurious objects before they can be . . . set aside by the National Tribunals.” He then cited the example of Rhode Island, where “the Judges who refused to execute an unconstitutional law were displaced, and others substituted, by the Legislature….”

Gouverneur Morris of Pennsylvania argued that the legislative negative was unnecessary because “A law that ought to be negatived will be set aside in the Judiciary department.” No one in this discussion disputed the power of the judiciary to set aside unconstitutional laws passed by states.

Nor did anyone question that federal judges would have the same power to set aside unconstitutional legislation from Congress. Much is made by critics of judicial review of the Convention’s rejection of the proposed council of revision, inferring from this refusal an intention of the framers that the judiciary defer to legislative will.

They rarely mention, however, that the most discussed and influential reason for rejecting the council of revision proposal was the existence of a judicial negative on unconstitutional legislation. So powerful is this and other evidence that it strongly supports the conclusion that judicial nullification was included within the original public meaning of the “judicial power.”

During a debate concerning whether judges should be included with the executive in a council empowered to revise laws, the comments of several delegates revealed their assumption that federal judges had the inherent power to hold federal laws unconstitutional.

Luther Martin of Maryland stated that “as to the Constitutionality of laws, that point will come before the Judges in their proper official character. In this character they have a negative on the laws.”

George Mason of Virginia observed that “in their expository capacity of Judges they would have one negative…. They could declare an unconstitutional law void.”

While he favored the idea of the council, James Wilson of Pennsylvania conceded that there “was weight in this observation” that “the Judges, as expositors of the Laws would have an opportunity of defending their constitutional rights.”

The assumption that judges possess the inherent power to nullify unconstitutional laws crops up in a variety of other contexts during the Convention. For example, Gouverneur Morris favored ratification of the Constitution by the people in convention because legislative ratification of the new Constitution was prohibited by the terms of the Articles of Confederation. “Legislative alterations not conformable to the federal compact, would clearly not be valid. The Judges would consider them as null & void.”

James Madison argued that a difference between a league or confederation among states and a constitution was precisely its status as binding law on judges. “A law violating a treaty ratified by a pre-existing law, might be respected by the Judges as a law, though an unwise or perfidious one. A law violating a constitution established by the people themselves, would be considered by the Judges as null & void.”

Hugh Williamson of North Carolina argued that an express prohibition on ex post facto laws by states “may do good here, because the Judges can take hold of it.”

What is striking in light of these statements is that, throughout the duration of the Convention, I could find no one who disputed the existence of a judicial power to nullify unconstitutional laws. No one.

I did find one delegate, John Mercer, who didn’t like the idea. But then delegate John Dickenson of Delaware replied that, although he was “was strongly impressed with the remark of Mr. Mercer as to the power of the Judges to set aside the law,” he said that he was “at a loss to know what expedient to substitute.”

Gouverneur Morris took issue with Mercer more sharply, stating that he could not agree that the judiciary “should be bound to say that a direct violation of the Constitution was law. A control over the legislature might have its inconveniences. But view the danger on the other side.”

What concerned the framers most was not the existence of the judicial power of nullification, but the likely weakness of the judiciary in holding the line. In this concern, they were prescient.

As we saw with the challenge to the ACA, courts more often find a way to “defer” to the majoritarian branches than to stand in the way. For example, James Wilson thought that Congress should have the power to nullify state laws because “the firmness of Judges is not itself sufficient.”

So, the “myth of judicial supremacy” is itself a myth.

The “judicial power” to nullify unconstitutional laws was no invention of John Marshall in Marbury but was well accepted at the time the Constitution was adopted. All assumed that courts could render a law “void” – indeed that this was their duty – and their judgment would necessarily be binding on the other branches.

Nor does this power make the judiciary “supreme.” It merely recognizes the concurrence of a coequal judiciary as the last line of defense of the rights retained by the people.

This post first appeared at the Volokh Conspiracy, where Professor Barnett blogs.
Randy Barnett

Sharp new critique of same-sex marriage rulings

Lyle Denniston Independent Contractor Reporter
Posted Sat, January 10th, 2015 7:46 am

Three judges of the U.S. Court of Appeals for the Ninth Circuit, sharply protesting a three-judge panel’s October ruling in favor of same-sex marriage in two states, argued on Friday that courts at that level of the federal judiciary have no authority to decide that question. The Supreme Court, those judges argued, took away that power forty-two years ago.
The critique, one of the strongest dissenting statements yet issued amid a wave of federal and state court rulings striking down bans on same-sex marriages, came as the en banc Ninth Circuit refused to reconsider the panel’s combined decision in cases from Idaho and Nevada. Circuit Judge Diarmuid F. O’Scannlain wrote the dissenters’ opinion, joined by Circuit Judges Johnnie B. Rawlinson and Carlos T. Bea. It is unclear how many judges on the full court voted to deny rehearing.
Perhaps by coincidence, the fervent judicial protest came on the same day that the Supreme Court considered anew whether it should step in now to resolve the constitutional controversy over same-sex marriage. (The Justices examined that issue in private Friday but did not act on it.) The O’Scannlain opinion bluntly argued that “the same-sex marriage debate is not over.” It could have the effect of building resistance within the Supreme Court to moving soon toward a nationwide ruling in favor of such unions.

The heart of the dissent was its argument that lower courts are still bound by the Supreme Court’s one-line decision in 1972 in the case of Baker v. Nelson, declaring that a claim to same-sex marriage did not raise “a substantial federal question.” Judge O’Scannlain wrote that the Baker precedent remains binding on lower courts, and he added that the Supreme Court had made clear that “federal courts must avoid substituting their own definition of marriage for that adopted by the states’ citizenry.”

The dissenting opinion used much stronger language than a majority of the U.S. Court of Appeals for Sixth Circuit had used in November in upholding bans on same-sex marriage in four states — an opinion that also had relied upon the Baker precedent.

Judge O’Scannlain did make some of the same other points that the Sixth Circuit panel’s majority had, such as the argument that an issue as sensitive as same-sex marriage should be left to the people and the state legislatures to resolve, and that it will be better for the nation and for its people to have it worked out by representative government rather than by the courts.

The panel’s decision in the Idaho and Nevada cases, Judge O’Scannlain wrote, “shuts down the debate, removing the issue from the public square. In doing so, it reflects a profound distrust in — or even a downright rejection of — our constitutional structure.”

The Ninth Circuit dissent, though, added another point that went beyond the Sixth Circuit’s ruling against same-sex marriage. The dissenters said that the courts simply have no authority to decide any question about marital policy, because there is a flat “domestic relations exception” to federal court jurisdiction over that field of law, since it is to be left to the states.

That notion dates all the way back to a Supreme Court decision in 1890 in the case of In re Burrus. That jurisdictional argument, although picked up by some state attorneys general in recent same-sex marriage cases, had not been embraced by any court as a reason not to rule on the constitutional issue. It has received some recent support in academic literature.
The three-judge panel decision so forcefully opposed by the dissenters Friday was written by Circuit Judge Stephen Reinhardt. He and Judge O’Scannlain have been long-time philosophical adversaries on the Ninth Circuit. Judge Reinhardt’s opinion for a panel majority against the Idaho and Nevada bans went further in its constitutional reasoning than any other federal court had in the lengthy series of decisions against state bans.

The Ninth Circuit took almost three months to reveal its vote on whether it would reconsider the panel decision before a full eleven-judge court. The governor of Idaho had asked for such a rehearing of the case involving that state’s ban, as had the Coalition for the Protection of Marriage, a group opposed to same-sex marriage, in the Nevada case. State officials in Nevada had abandoned a defense of their state’s ban.

The Idaho governor and the state’s attorney general have filed separate petitions asking the Supreme Court to review the Ninth Circuit’s panel decision. Those petitions were not among those that the Justices considered at their private Conference on Friday, because they were not yet ready to be submitted to the Justices.

http://www.scotusblog.com/2015/01/sharp-new-critique-of-marriage-rulings/

Disparate impact’s day in court

Posted on January 22, 2015 by Paul Mirengoff

Yesterday, the Supreme Court heard oral argument in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc. The issue presented is whether claims of “disparate impact discrimination” can be brought under the Fair Housing Act (FHA).

As I explained here, disparate impact discrimination occurs when a policy disproportionately excludes or injures a particular group and the policy is not shown to be justified by legitimate interests. Under disparate impact theory, the policy is illegal regardless of whether it was intended to discriminate.

The Obama administration has struggled mightily to prevent the Supreme Court from reaching the question of whether disparate impact claims can be brought under the FHA. In two cases, it in essence bought off the opposing parties to thwart review by a Supreme Court it fears will be hostile to the government’s position.

But the government may be feeling better about its chances after oral argument. Why? Because Justice Scalia asked questions that suggested he believes the FHA authorizes disparate impact claims. Although the language of the original legislation, passed in 1968, suggests otherwise, Scalia noted that by the time Congress amended the Act in 1988, courts had already held that disparate impact claims can be brought, and Congress passed amendments that seemed to recognize this. (Roger Clegg takes a different view of the 1988 amendments here).

If the government picks up Scalia’s vote, its chances of prevailing are excellent. The Court’s four liberal stalwarts seem prepared to vote in favor of the Obama administration’s position.

But Team Obama, Elizabeth Warren, and their fellow leftists shouldn’t celebrate yet. In the past, Scalia has expressed concern over whether disparate impact theory can be reconciled with the Constitution. Indeed, in an employment case, Ricci v. DeStefano, Scalia basically invited attorneys in subsequent cases to argue that the disparate impact theory of employment discrimination is unconstitutional.

Yesterday, Scalia seemed to have the same constitutional concerns about disparate impact theory in the housing context. He wondered how courts could decide whether a policy has disparate impact without using the kinds of race-conscious analysis the Court has rejected in the past.

So even if the FHA authorizes disparate impact suits, the authorization may not be constitutional. And if the FHA can plausibly be interpreted as either authorizing or not authorizing disparate impact claims, the later construction could be adopted in order to save the statute from being struck down as unconstitutional.

Although the outcome of this case is in doubt, at least there is likely to be an outcome. Unlike the previous two plaintiffs who were headed to the Supreme Court with this issue, Texas is not a good candidate for being bought off. But if it can be, the government should consider taking a shot, Justice Scalia’s references to the 1988 FHA amendments notwithstanding.

http://www.powerlineblog.com/archives/2015/01/disparate-impacts-day-in-court.php

A Judge most have never heard of . .

Billings Learned Hand (January 27, 1872 – August 18, 1961), usually called simply Learned Hand, was an American judge famous as an avid supporter of free speech and for applying economic reasoning to American tort law. He is noted as one of the most influential American judges to have never actually served on the Supreme Court of the United States.

Quotes
    Most of the issues that mankind sets out to settle, it never does settle… The dispute fades into the past unsolved, though perhaps it may be renewed as history and fought over again. It disappears because it is replaced by some compromise that, although not wholly acceptable to either side, offers a tolerable substitute for victory…
        Quoted in Jacques Barzun and Henry Graff, "The Modern Researcher", 3rd edition (New York: Harcourt, Brace, Jovanovich, 1977), 44. As cited in "Chemistry and Controversy: Regulating the Use of Chemicals in Foods, 1883-1959"; An Abstract of A Dissertation by Suzanne Rebecca White submitted to the Faculty of the Graduate School of Emory University in partial fulfillment of the requirements for the degree of Doctor of Philosophy, Department of History, 1994.

    We believe, and I think properly, that when the men who met in 1787 to make our Constitution they made the best political document ever made; but, remember, they did so very largely because they were great compromisers.
        Testimony before the United States Congress, Senate Committee on Labor and Public Welfare, hearing on the Establishment of a Commission on Ethics in Government (1951).

Judicial opinions
Life is not a thing of knowing only — nay, mere knowledge has properly no place at all save as it becomes the handmaiden of feeling and emotion.
A wise man once said, "Convention is like the shell to the chick, a protection till he is strong enough to break it through."
The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the minds of other men and women…

    How long shall we blunder along without the aid of unpartisan and authoritative scientific assistance in the administration of justice, no one knows; but all fair persons not conventionalized by provincial legal habits of mind ought, I should think, unite to effect some change.
        Parke, Davis & Co. v. H. K. Mulford Co. (1911).

    Political agitation, by the passions it arouses or the convictions it engenders, may in fact stimulate men to the violation of the law. Detestation of existing policies is easily transformed into forcible resistance of the authority which puts them in execution, and it would be folly to disregard the causal relation between the two. Yet to assimilate agitation, legitimate as such, with direct incitement to violent resistance, is to disregard the tolerance of all methods of political agitation which in normal times is a safeguard of free government.
        Masses Publishing Co. v. Patten (1917).

    Any one may so arrange his affairs that his taxes shall be as low as possible; he is not bound to choose that pattern which will best pay the Treasury; there is not even a patriotic duty to increase one's taxes.
        Helvering v. Gregory, 69 F.2d 809, 810-11 (2d Cir. 1934).

    What to an outsider will be no more than the vigorous presentation of a conviction, to an employee may be the manifestation of a determination which it is not safe to thwart.
        National Labor Relations Board v. Federbush Co., 121 F.2d 954, 957 (1941).

    There is no surer way to misread any document than to read it literally. … As nearly as we can, we must put ourselves in the place of those who uttered the words, and try to divine how they would have dealt with the unforeseen situation; and, although their words are by far the most decisive evidence of what they would have done, they are by no means final.
http://en.wikiquote.org/wiki/Learned_Hand

Judges Usurping the Constitution

John Marshall usurped the Constitutional limits of Article III first in Marbury V Madison [Judicial review] and next in McCulloch V Maryland [Implied powers and the Necessary and Proper clause]. His actions in effect created a super powerful third branch which could rule over the Executive and the Congress.

The Founders except for Hamilton did not trust a strong central government nor did they trust the courts. They divided the powers - the executive had the sword, the congress had the purse and the courts had power over neither. Magistrates had mistreated and abused the citizens of the Colonies so they did not like courts.

The Court behaved itself until the FDR threatened to pack the court with 15 new Justices so one Justice changed his vote and forever has been known as the switch in time that saved nine. From that point on the SCOTUS has taken more and more power using the 14th amendment to kill the 9th and 10th amendment, while ignoring the Article 4 Section 4 limits and promises.

No, since they started legislating from the bench they have changed our government from a Republic to a Nation ruled by nine Black Robes with no check on their powers. Look at the complete destruction of the 4th, 5th ["TAKING CLAUSE"], the 9th and the 10th amendment have been set aside. Read Kelso V New London and see that the government can "{TAKE" your home and then sell or give to another person that will or can produce money tax revenue for the Government?

If we no longer have the right to property - what have we become?

Thank you for reading
Mangus Colorado

Activist Alabama Supreme Court Radically Expands Tort Liability

Cameron Smith By Cameron Smith

on February 20, 2013 at 12:42 PM, updated February 20, 2013 at 5:01 PM

For the second time in as many months, the Alabama Supreme Court has turned out an opinion that flatly undermines the conservative principles on which each and every one of the current justices campaigned.

In December's Town of Gurley v. M&N Materials Inc., the Alabama Supreme Court directly undermined private property rights by holding that "regulatory takings," such as zoning changes or other government-imposed use prohibitions, are not compensable under Alabama law.

Last month, in Wyeth v. Weeks, the Alabama Supreme Court adopted an aggressive new theory of tort liability that threatens to return Alabama to a litigation era so hostile to business and industry that the state was dubbed "Tort Hell."

In Weeks, the Court held, over Justice Glenn Murdock's 46-page dissent, that "[u]nder Alabama law, a brand-name drug company may be held liable for fraud or misrepresentation...by a plaintiff claiming physical injury caused by a generic drug manufactured by a different company." Translation: In Alabama, a company can be held liable for injuries caused by the use of its competitors' products.

Three things about the Court's opinion in Weeks are particularly shocking. First, the opinion leaves Alabama as one of three states bucking a more conservative national trend. Approximately 78 decisions, applying the law of 25 different states, have rejected the "innovator-liability" theory that our Supreme Court adopted, including rulings from each of the states that borders Alabama.

Indeed, the only two states whose courts align with the Alabama Supreme Court's Weeks opinion are California and Vermont.

Second, the Court's opinion flies in the face of past tort reform efforts to remove the state's reputation as "Tort Hell." On June 9, 2011, Governor Bentley signed into law five separate tort reform measures designed by the Alabama Legislature to limit liability and restore the balance between business productivity and reasonable compensation for injury.

Of the five reforms, Senate Bill 184 specifically precluded product liability actions against "distributors" that did not also manufacture the offending product. In doing so, the Legislature recognized the importance of maintaining the time-honored relationship between manufacturing a particular product and bearing liability for injuries caused by that product. In the Weeks case, the defendants neither manufactured nor sold the drugs that harmed the plaintiffs.

Finally, and perhaps most galling of all, the Alabama's Supreme Court's Republican justices have generally advertised themselves as conservatives who defend the rule of law against judicial activism. For example, a campaign ad for Justice Lyn Stuart proclaimed that "courts should interpret the law, not create it." Justice Tom Parker's ad likewise aggressively and repeatedly assailed "liberal activist judges who ignore state laws and constitutions." The Center for Individual Freedom ran ads supporting Justices Kelli Wise and Mike Bolin in their fight against "judicial activists."

Unfortunately, the justices' campaign messages and their recent opinions are in direct conflict. M&N and Weeks are quintessentially "activist" decisions, regardless of the political affiliations of the justices. In both cases, the Court ignored volumes of case law and precedent in an effort to reach a result that seemed more palatable to their own sensibilities. That is policymaking, pure and simple. And it is precisely what the justices purport to stand against.

If ignoring the acts of the State Legislature, deteriorating private property rights, and imposing new theories of liability- all in the face of existing Alabama law - are not evidence of "judicial activism," then that phrase is meaningless.

In an article accusing the U.S. Supreme Court of its own brand of judicial activism, Justice Tom Parker noted that "it does no good to possess conservative credentials if you surrender them before joining the battle." Alabamians should hold our own Supreme Court accountable for doing just that if they refuse to reconsider their recent opinions.

Cameron Smith is policy director and general counsel for the Alabama Policy Institute an independent, non-profit research and education organization dedicated to the preservation of free markets, limited government and strong families. He may be reached at camerons@alabamapolicy.org or on Twitter @DCameronSmith.

NOTE: On Monday, February 18, 2013, the Alabama Policy Institute filed an amicus curiae brief before the Alabama Supreme Court arguing that the Court should reverse its opinion in Wyeth v. Weeks.

http://blog.al.com/birmingham-news-commentary/2013/02/activist_alabama_supreme_court.html

Judicial Supremacy: How Did this Far-Fetched Claim Originate?

The supremacy of Supreme Court opinions in questions of constitutionality has evolved into an indisputable doctrine in the United States. Virtually nobody, particularly in the legal community, question the idea that the Court serves as the final decision maker when it comes to the Constitution. This view is nonsense.

John Marshall’s 1803 opinion in Marbury v. Madison serves as the cornerstone of this doctrine. After all, Marshall declared, “It is emphatically the province and duty of the judicial department to say what the law is.”

On Feb. 27, 2013, I testified before a Tennessee Senate Committee on a proposed Second Amendment Preservation Act and argued that modern legal scholars snatch Marshall’s words out of context. He never intended to imply that the Supreme Court was the sole and final arbiter on all things constitutional. The Chief Justice was merely asserting that the Court can, in fact, strike down an act of Congress by calling it unconstitutional. Nowhere in his opinion does Marshall hold that the Court has exclusive authority to rule on constitutionality, but places the power in the courts, along with the other branches of government.

Read more....
http://tenthamendmentcenter.com/2014/07/07/judicial-supremacy-how-did-this-far-fetched-claim-originate/?replytocom=958803#respond

Immunity lets bad judges off hook for bad behavior

Tresa Baldas, Detroit Free Press 10:17 a.m. EDT July 28, 2014

DETROIT — Wade McCree Jr. (pictured at left) lost his job, but he won't lose his shirt.
The disgraced judge — who once texted a shirtless photo of himself to a female court bailiff — had an affair with a woman while overseeing her child custody case, had sex with her in his chambers and sexted her from the bench.

But he can't be sued for money damages over any of that because judges are immune from civil lawsuits — a well-established doctrine that has many in the legal profession demanding change, arguing the McCree case highlights a pervasive problem in the justice system: judges getting away with bad behavior on immunity grounds.

"There has to be a point where there is no immunity for judges. When we're told that certain government officials are off limits — it undermines public confidence in government," said Connecticut civil rights attorney Norm Pattis, author of "Taking Back the Courts," a 2011 book that documents flaws in the justice system.

"I don't think anybody should be above the law, least of all those who administer it," said Pattis, who called the immunity doctrine "a crazy rule" and the McCree case "outrageous."

"It's sort of a medieval relic to suggest that the king can do no wrong, so why sue them," Pattis said.

And McCree did plenty wrong, said Detroit attorney Joel Sklar. He's preparing to take the McCree case to the U.S. Supreme Court, which has long held that judges are immune from lawsuits for their acts and decisions, even unconstitutional ones. The idea is to help judges stay impartial.

Last Monday, the U.S. 6th Circuit Court of Appeals cited that philosophy in concluding that McCree could not be sued by the father of his mistress' child, even though his actions were "often reprehensible."

The ruling baffled Sklar. He represents the father, Robert King, who claims McCree denied him access to a fair and impartial judge by having an affair with Geniene La'Shay Mott when she sued King over child support. King claims McCree's decisions — such as placing him on a tether — were influenced by his "sexual desires" and that his rulings unfairly favored his mistress.

"This conduct is absurd," Sklar said. "It's so beyond description. A judge uses his chambers to have sex with a litigant? ... If this isn't too far, what is too far?"

Consistent rulings
Sklar is facing an uphill battle.

Over the last several decades, federal courts nationwide have consistently ruled against plaintiffs who tried to sue judges for civil damages over decisions they made or misconduct issues. The courts granted immunity to judges under the guidance of the U.S. Supreme Court,which established the judicial immunity doctrine in 1967 when it ruled that a Mississippi justice of the peace was immune from a civil rights suit for trying to enforce illegal segregation laws.

The U.S. Supreme Court weighed in on the issue again in 1978, when it blocked a lawsuit against an Indiana judge who had authorized the sterilization of a mentally handicapped 15-year-old girl at her mother's request. The girl, who didn't learn she was sterile until she got married — she was told she had an appendectomy — sued on due process grounds, but lost.

The high court essentially has held that anything a judge does in his or her capacity as a judge is covered under the immunity clause. But if, for example, a judge unlawfully fires someone, that's not covered because because hiring or firing is not considered a judicial activity.

This conduct is absurd. A judge uses his chambers to have sex with a litigant? ... If this isn't too far, what is too far? - Detroit attorney Joel Sklar

Meanwhile, only a handful of judges nationwide have been successfully sued for civil rights violations — none in Michigan. One such case involved a Tennessee juvenile court judge who was accused of violating the civil rights of three women by sexually assaulting them and threatening to take their kids away if they didn't give in. In 1996, the 6th Circuit denied him judicial immunity from civil liability.

Those cases are very rare.

Freedom from fear
According to legal experts, it has long been recognized that in order for judges to be able to make impartial decisions, without fear of repercussions, they need to be immune from lawsuits.

"We don't want judges looking over their shoulder, being worried about being sued by litigants. And we don't want litigants being able to take judges to court for everything they think they've done wrong," said Michael Crowell, a public law and government professor at the University of North Carolina-Chapel Hill.

But just because you can't sue judges for money damages doesn't mean they can get away with bad behavior or an unfair decision, Crowell said. He noted that judges who engage in misconduct can be removed from the bench — as McCree was. The Michigan Supreme Court removed him from the bench in March and suspended him without pay for six years, just in case he is re-elected to office this fall.

Crowell said that judges can be criminally prosecuted if their conduct is bad enough. Or a litigant unhappy with a judge's decision can use the misconduct as grounds for an appeal.

"Judicial immunity protects a judge from being sued ... but that doesn't get the judge off the hook altogether," Crowell said, noting he'd be "very surprised" if the U.S. Supreme Court takes the McCree case.

Loosening the immunity doctrine would trigger a tsunami of lawsuits against judges, discourage appeals and strip judges of their independent decision-making authority — all of which would hurt the justice system, said Sheldon Nahmod, a constitutional law and civil rights professor at Chicago-Kent College of Law.

"The Supreme Court does not really need to get into this," he said.

2 Tennessee cases
Judicial immunity is a sore spot for Stuart James, a civil rights lawyer in Chattanooga, Tenn., who is handling two civil suits against state judges — one of whom escaped liability recently. That case involved a judge accused of propositioning a woman for sex in exchange for him issuing a warrant for some individuals she claimed attacked her.

In February, a federal judge dismissed the lawsuit, concluding that even if the judge did ask her for sex, he was protected by the immunity doctrine. The judge, however, lost his job and was indicted on criminal charges. He just can't be sued for money.

That's not enough for James. He believes that if a judicial panel has removed someone from the bench for misconduct, the immunity defense shouldn't hold up anymore.

"If your conduct was so reprehensible that you're being taken off the job ... I think they should be monetarily liable," James said. "That's the way our justice system works. Victims should be compensated for what's been done with them."

As for the immunity doctrine, he said: "There's gotta be a change ... because unfortunately, there are a lot of bad judges."

http://www.usatoday.com/story/news/nation/2014/07/28/bad-judges-immunity-civil-lawsuits/13259199/

Judicial Supremacy: How Did this Far-Fetched Claim Originate?

July 7, 2014 By Mike Maharrey

The supremacy of Supreme Court opinions in questions of constitutionality has evolved into an indisputable doctrine in the United States. Virtually nobody, particularly in the legal community, question the idea that the Court serves as the final decision maker when it comes to the Constitution. This view is nonsense.

John Marshall’s 1803 opinion in Marbury v. Madison serves as the cornerstone of this doctrine. After all, Marshall declared, “It is emphatically the province and duty of the judicial department to say what the law is.”

On Feb. 27, 2013, I testified before a Tennessee Senate Committee on a proposed Second Amendment Preservation Act and argued that modern legal scholars snatch Marshall’s words out of context. He never intended to imply that the Supreme Court was the sole and final arbiter on all things constitutional. The Chief Justice was merely asserting that the Court can, in fact, strike down an act of Congress by calling it unconstitutional. Nowhere in his opinion does Marshall hold that the Court has exclusive authority to rule on constitutionality, but places the power in the courts, along with the other branches of government.

    The particular phraseology of the Constitution…confirms and strengthens the princip    le…that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.

I expanded this argument in a subsequent article titled Nullification for Lawyers.

    Marshall was answering a specific question: does the Court have the authority to consider the constitutionality of an act when ruling on a case. At issue was a provision of the Judiciary Act of 1789 and whether the Court had original jurisdiction to decide if a writ of mandamus could be issued to force Madison to hand over Marbury’s commission. Some argued the court should just consider the law – the Judiciary Act itself – and not the Constitution. Marshall defended his decision to rule based on the Constitution.

    The judicial power of the United States is extended to all cases arising under the Constitution.

    “Could it be the intention of those who gave this power to say that, in using it, the Constitution should not be looked into? That a case arising under the Constitution should be decided without examining the instrument under which it arises?

    “This is too extravagant to be maintained.”

In an August 2010 paper for the Constitution Project titled “Judicial Supremacy: How Did this Far-Fetched Claim Originate?” (available to read in full below this article) constitutional scholar Louis Fisher launches an in-depth analysis of the Marbury decision and arrives at the same conclusion: Marshall never intended to assert absolute superiority of the Court. In fact, Fisher calls the notion “nonsense.”

    Much nonsense has been written about Marbury v. Madison (1803), especially in recent decades by the Supreme Court. Yes, it represents the first time the Court held a statutory provision of Congress to be unconstitutional. However, other extravagant claims, including judicial supremacy, would be disowned by its author, Chief Justice John Marshall. By placing a public stamp of approval on judicial review, the Court formally recognized what was obvious: that elected branches are subject to the constraints of the Constitution. That elementary point is on public display every time elected officials take their oath of office. The more interesting issue is who gets to decide what is unconstitutional and whether that decision is in any sense final. In our democracy no branch is final on constitutional questions.

Fisher begins by tracing the origins of “judicial review,” through England, during the colonial period and in the founding era, pointing out that nobody can definitively say just how much power the founding generating intended to give the courts. He quotes constitutional scholar Edward S.Corwin, “These people who say the framers intended [judicial review] are talking nonsense; and the people who say they did not intend it are talking nonsense. There is evidence on both sides.”

Fisher then delves into the Marbury case itself, exposing a little known fact: Marshall had a major conflict of interest and should have recused himself from the case. As the Adams administration prepared to relinquish power to Thomas Jefferson, Marshall was still was serving as secretary of state. It was actually his responsibility to deliver Marbury his commission. Marshall failed to do so because of “last minute pressures and burdens.”

    Marshall should not have participated in the case. His previous involvement as Secretary of State and his failure to deliver the commissions to Marbury and others disqualified him. He should have recused himself. The conflict of interest was so great he could not possibly claim impartiality, a quality essential for those who judge.

Looking at the opinion itself, Fisher concludes that much of what Marshall wrote was actually extra-judicial. Marbury found that the Supreme Court lacked jurisdiction to hear the case, but then went on to lecture Jefferson.“To withhold his commission, therefore, is an act deemed by the court not warranted by law, but violative of a vested legal right.”

Fisher points out that in 1928 Andrew C. McLaughlin observed, “we must come to the conclusion that everything said by Marshall concerning Marbury’s title was distinctly unauthoritative and in no sense constituted a decision. It was legally valueless. If there is anything fundamental in law, I should say it is that the acts of a court wanting jurisdiction are void.”

McLaughlin went on to argue that Marshall essentially created a legal construction out of thin air. “The learned Justice really manufactured an opportunity to declare an act void.”

But the central question remains: did Marshall intend the court to stand as the sole and final authority of all things constitutional? Fisher comes to the same conclusion I did – no, And he makes a similar argument.

    Charles Hobson, a scholar of John Marshall, correctly stated that the language “emphatically the province” does not imply “any claim to judicial supremacy in expounding the Constitution or to exclusive guardianship of the fundamental law.”

Fisher takes a Jeffersonian view, asserting that the various branches of government share responsibility for determining constitutionality. He references as letter from Jefferson to Abagail Adams.

    “You seem to think it devolved on the judges to decide on the validity of the sedition law. But nothing in the Constitution has given them a right to decide for the Executive, more than to the Executive to decide for them.” In articulating the doctrine of coordinate construction, Jefferson said that each branch was “independent in the sphere of action assigned to them.” Judges could fine and imprison someone, but the President under his independent power of pardon could then “remit the execution of it.” Giving judges the right to decide exclusively a constitutional question “would make the judiciary a despotic branch.”

Fisher does find Merits in the Marbury decision, specifically Marshall’s political astuteness.

    Marbury deserves praise not because of Marshall’s command of constitutional principles, but for his political skills… At the time of Marbury, the national judiciary was an endangered branch. Marshall’s genius lay in his political sophistication of what a Court may and may not do.

Marshall never again used judicial review to strike down an act of Congress. Instead, he used judicial opinions to expand the powers of the national government. “In a series of cases he fortified national power over the states. His decisions were largely political, not legal,” Fisher wrote.

In the years since the Marbury decision, the Supreme Court has relied on the words of Marshall to claim for itself unquestionable, absolute constitutional authority. But as Fisher points out, we should always suspect any institutions’ own claim on power. In fact, the Supreme Court was never given constitutional supremacy.

    The framers never intended to vest in the Court final authority over the meaning of the Constitution, nor has the Court ever succeeded in exercising that authority. A majority of five Justices lacks both the legitimacy and the competence to claim an exclusive voice. Justice Byron White put the matter crisply in 1970 when he said that “this Court is not alone in being obliged to construe the Constitution in the course of its work; nor does it even approach having a monopoly on the wisdom and insight appropriate to the task.”

Read the full paper below:
http://tenthamendmentcenter.com/2014/07/07/judicial-supremacy-how-did-this-far-fetched-claim-originate/

Court strikes down recess appointments: In Plain English

Amy Howe Editor/Reporter
Posted Thu, June 26th, 2014 3:13 pm

With only four decisions remaining when the Justices took the bench today, we knew we would have to get something good: all four decisions had the potential to be blockbusters. And we did indeed, starting with a unanimous declaration by the Supreme Court that the president violated the Constitution in 2012 when he appointed three commissioners to the National Labor Relations Board during a brief recess of the Senate. Let’s talk about the decision and what it means in Plain English.

As unlikely as it sounds, the Court’s decision in National Labor Relations Board v. Noel Canning was its first pronouncement on the scope of the president’s power to make recess appointments. And the Court’s opinion was a mixed bag for both sides. Noel Canning, the soft-drink bottling company challenging the president’s recess appointments to the NLRB, and the conservative and business groups that supported it certainly regarded it as a victory in the sense that the specific recess appointments at issue were deemed invalid. But the president and his supporters could also declare victory, at least to a point: the Court upheld his power to make other recess appointments – as long as they are made during recesses that last at least ten days.

Justice Stephen Breyer (who before becoming a judge worked, among other places, as an attorney for the Senate Judiciary Committee) wrote an opinion for the Court with which Justices Kennedy, Ginsburg, Sotomayor, and Kagan fully agreed. Even before the Court addressed the particular questions before it, it made clear that its decision would be influenced by the long historical practice of recess appointments, by presidents from both parties: “We have not previously interpreted the [Recess Appointments] Clause, and, when doing so for the first time in more than 200 years, we must hesitate to upset the compromise and working arrangements that the elected branches of Government themselves have reached.”

The Court began with the first question presented in the case: whether the Constitution allows the president to make recess appointments during “intra-session” recesses (breaks that occur within the two one-year sessions between congressional elections) or only during “inter-session” recess (the break between the two one-year sessions). Its answer on this question is a victory for the Obama administration and future presidents who want to be able to make recess appointments. Again relying heavily on a long tradition of recess appointments, it concluded that the constitutionality of a recess appointment does not hinge on whether it is made during an intra- or inter-session recess. After all, the Court noted, if the purpose of the Recess Appointments Clause is to “ensure the continued functioning of the Federal Government when the Senate is away,” it doesn’t really matter what you call the recess. If the Senate isn’t there, it isn’t there.

But there’s a catch – one that narrows the scope of the ruling. Even if it doesn’t matter whether the recess is an intra- or inter-session one, it does matter how long the recess is. Here the Court said that any recess that is shorter than three days is not long enough to make a recess appointment necessary. And a recess that is longer than three days but shorter than ten days will, in the normal case, also be too short to necessitate a recess appointment. (The Court added that there may be “very unusual” cases – such as a “national catastrophe . . . that renders the Senate unavailable but calls for an urgent response” – in which recess appointments would be permitted even though the recess was still shorter than ten days.)

The Court’s answer on the second question posed in the case – whether the president can use his recess appointment power to fill any vacancies that happen to exist when the Senate is in recess, or whether he is limited to vacancies that are created while the Senate is in recess – also favored the Obama administration. Explaining once again that the Founding Fathers included the Recess Appointments Clause to allow the government to operate when the Senate isn’t available to confirm senior officials, the Court reasoned that the narrower reading of the clause (as allowing the president to use his power only to fill vacancies that were created during the recess) “would prevent the President from making any recess appointment that arose before a recess, no matter who the official, no matter how dire the need, no matter how uncontroversial the appointment, and no matter how late in the session the office fell vacant.” And, the Court again emphasized, although presidents have long deployed the recess appointments power to fill vacancies, regardless of when they occurred, the Senate has never disputed that practice.

The Court then turned to the third and final question presented in the case: whether the Senate can prevent the president from making recess appointments even during its longer recesses by holding “pro forma” sessions – that is, sessions at which no work actually gets done – every three days. The Court answered that question in the affirmative, rejecting the federal government’s argument that the “pro forma” sessions are, in essence, just a sham to thwart the president’s recess appointments powers. In the Court’s view, all that matters is whether the Senate says it is in session and could at least in theory conduct business, which is possible (even if unlikely) at the pro forma sessions.

Here it is important to note that, although all nine Justices agreed that these particular recess appointments were invalid, there was not a lot of harmony on the Court in this case. Justice Antonin Scalia wrote a separate opinion that was joined by Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito. As Scalia explained in a lengthy statement from the bench that followed Breyer’s summary of the Court’s decision, he and his three colleagues would have held that the president’s recess appointments power is substantially more limited than the Court ruled today. For example, they would have ruled that the president can only make recess appointments during inter-session recesses, and only then to fill vacancies that are created during that recess. And the majority did not escape Scalia’s trademark incisive remarks, as he criticized it for relying on an “adverse-possession theory of executive authority: “Presidents have long claimed the powers in question, and the Senate has not disputed those claims with sufficient vigor, so the Court should not ‘upset the compromises and working arrangements that the elected branches of Government themselves have reached.’”

So what exactly does all of this mean, going forward? First and foremost, it means that the three recess appointments directly involved in this case – to the NLRB – are invalid. That in turn means that any decisions in which those three NLRB commissioners participated while they were recess appointees are invalid. But nothing in the Court’s ruling suggests that it would invalidate other, earlier recess appointments. To the contrary, the Court made clear that, over two centuries, presidents had made only a very small handful of recess appointments during recesses that were shorter than ten days. And later on, it contrasted its approach with that of Justice Scalia – whose approach, it contended, “would render illegitimate thousands of recess appointments reaching all the way back to the founding era.”

But what about other recess appointments in the future? The short answer is that it really will depend on which parties are in power. Right now Democrats control both the White House and the Senate. With the decision by Senate Democrats back in November to invoke the “nuclear option” – which allows them to confirm the president’s nominees with a simple majority – the president currently doesn’t need to use recess appointments to fill judgeships or senior positions in the executive branch. But that could change if the Republicans gain control of the Senate this November (a prospect that many believe is increasingly likely): a Republican Senate could not only block the president’s nominees, but prevent the president from making recess appointments by ensuring that it never recesses for more than a few days. And, of course, the shoe could be on the other foot if – after the 2016 elections — the Democrats were to control the Senate but lose the White House. So even if the president’s recess appointments power may not factor into many voters’ decision-making process, it certainly could hang in the balance in the next two elections.

Posted in National Labor Relations Board v. Noel Canning, Featured, Plain English / Cases Made Simple

http://www.scotusblog.com/2014/06/court-strikes-down-recess-appointments-in-plain-english/#more-214171

Town of Greece Case Returns the Establishment Clause To Its Original Meaning

May 15, 2014 by Rob Natelson

Last week I reported on Justice Thomas’ citation of my work in his concurring opinion in Town of Greece v. Galloway, a widely-discussed decision on the Establishment Clause of the First Amendment. This week, I’ll put the decision in context.

The meaning of the Establishment Clause (”Congress shall make no law respecting an establishment of religion”) has long been debated. Here are some of the hypotheses advanced:

* The Founders created a “Christian nation” in which the federal government could promote Christianity. The Establishment Clause assured, however, that the federal government would not favor any denomination of Christians over any other. This was the view of the great 19th century Supreme Court Justice and law professor Joseph Story.

* The Establishment Clause was adopted principally to protect the states from federal interference with their own established churches. This is Justice Thomas’ view.

* The Establishment Clause was adopted to protect the states from federal interference with their own established churches, but also to require the federal government to treat all religions equally. The Clause did not, however, place atheism or agnosticism on a par with religion. This conclusion is called “non-preferentialism.”

* The Clause not only protected the states from federal interference with their own established churches, but also required the government to treat all religious opinions, including atheism and agnosticism, equally. This formulation is called “neutrality,” and former Justice David Souter was one of its exponents.

* The Clause required the government to lean over backwards to avoid any entanglement or appearance of favoritism for religion. This is called “strict separation.”

There have been various modifications and blending of the views listed above, including a rather incoherent version called “accommodation,” a doctrine followed late in the 20th century by some of the more conservative justices.

Beginning in the 1940s (although with roots earlier), the Supreme Court issued a series of “strict separation” cases and imposed them on the states as well as well as on the federal government. It soon became evident that strict separation was both impractical and contrary to the actual meaning of the Establishment Clause. Accordingly, in the 1970s the Court began a long journey from strict separation, wandering through “neutrality” and “accommodation,” and toward non-preferentialism.

The Town of Greece case seems to complete this journey. Justice Thomas’ concurrence aside, all the opinions—majority and dissent—are squarely non-preferentialist. All acknowledged that the Town could sponsor prayers before Town Board meetings. The writer of the dissent, Justice Kagan, even affirmed explicitly her support for civic prayer. The only real dispute was over whether the Town had treated all religions fairly when selecting clergy to perform the invocation. The majority thought the Town had been fair, at least on balance. The dissent thought it had unfairly favored Christianity over Judaism and other religions adhered to by citizens of the Town. But that was a dispute over the facts, not over legal doctrine.

Several years ago, I wrote an article for the William and Mary Bill of Rights Journal entitled The Original Meaning of the Establishment Clause. As some other scholars had concluded before me, I found that non-preferentialism was, in fact, the intent of those who adopted the Establishment Clause: both protection of state established churches and equal congressional treatment of all religions.

This conclusion seems to be a little different from that of Justice Thomas: I believe the Clause was, in addition to a protection for federalism, a positive guarantee to all religious believers. Perhaps this is why Justice Thomas cited my writings on the Necessary and Proper Clause rather than those on the Establishment Clause!

In any event, with the Town of Greece case the Court’s Establishment Clause jurisprudence returns to the original meaning. Whether that jurisprudence should be imposed on the states is another matter, and Justice Thomas may well be correct that it should not.

That last question involves considering (in my opinion) not the Establishment Clause, but the “incorporation doctrine”—the doctrine by which the Supreme Court imposes nearly all of the Bill of Rights on state governments as well as on the federal government. The incorporation doctrine is a topic for another time.

http://constitution.i2i.org/2014/05/15/town-of-greece-case-returns-...

Johnson-Land-Vail-BLM-Bundy-Land-Grab-Federal-Rights-California

CAN THE BLM OWN LAND INSIDE STATE BORDERS?

The Bureau of Land Management’s siege of the Bundy Ranch in Nevada compels me to re-publish this post. I ask readers to carefully research this issue and to decide for yourself whether or not the federal government has violated public trust and the Rule of Law.

For a painfully long time now, our federal masters and their judicial enablers have ignored and, to my way of thinking, flagrantly violated the Constitution with impunity. All too often, Supreme Court rulings have served to override common sense, constitutionality and original intent.

And so long as black-robed, unelected and unaccountable judicial oligarchs, aka judges–as well as the submissive states themselves–allow “judicial supremacy” to trump “constitutional supremacy” on a whole host of foundational constitutional issues, our economic growth will be hobbled, our liberties diminished, state sovereignty further degraded, constitutional order imperiled, common sense and Rule of Law abandoned.

To wit, per Art 1.8.17 of the Constitution and provisions of the Northwest Ordinance of 1787, and despite a veritable cesspool of clubby, contrived and revisionist court rulings over the years through which I was barely able to wade, it appears glaringly obvious to me that our federal overseers are occupying millions of otherwise productive acres within the several states without the “concurrence” of those states and without constitutional justification.

Article 1.8.17 (“Enclave Clause”) granted power to Congress “to exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States [i.e. the District of Columbia], and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be for the erection of forts, magazines, arsenals, dockyards, and other needful buildings.” Crystal-clear what the original meaning is here despite the shamelessly self-serving litany of subsequent spin on the part of our judicial overlords, lap dogs of the federal government.

Read more....http://www.breitbart.com/Breitbart-California/2014/04/30/Johnson-Land-Vail-BLM-Bundy-Land-Grab-Federal-Rights-California

Join the conversation: http://www.teaparty.org/federal-land-grab-comes-california-40810/#sthash.9mW32DEg.dpuf

Justice John Roberts Rules on Obamacare Again… Poorly

Posted By Frank Salvato on Jan 9, 2014

Now comes news that Supreme Court Chief Justice John Roberts has doubled down on his middle finger to the American citizenry by turning away – without comment, which the SCOTUS gets to do – an emergency stay request, filed by the Association of American Physicians & Surgeons and the Alliance for Natural Health USA, to block the implementation of Obamacare.

In an almost ignored story, FOX News reports:

    “Chief Justice John Roberts turned away without comment Monday an emergency stay request from the Association of American Physicians & Surgeons, Inc. and the Alliance for Natural Health USA.

    “They asked the chief justice Friday to temporarily block the law, saying Congress had passed it incorrectly by starting it in the Senate instead of the House. Revenue-raising bills are supposed to originate in the lower chamber. They also wanted blocked doctor registration requirements they say will make it harder for independent non-Medicare physicians to treat Medicare-eligible patients.

    “Still pending is a decision on a temporary block on the law’s contraceptive coverage requirements, which was challenged by a group of nuns.”

With an overwhelming number of Americans standing against the implementation of this law, an ever increasing realization of consequences that make the law he most expensive entitlement program ever launched, and the Obama Administration’s unconstitutional manipulation of the law’s provision via executive caveat, Chief Justice Roberts had a golden opportunity to rectify his atrocious ruling that allowed for this law to become binding to the American people. Again, Mr. Roberts has cheated the American people from the benefits of constitutional justice.

Article I, Section 7 of the US Constitution states clearly:

    “All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills…”

That The Patient Protection & Affordable Care Act (Obamacare) originated out of the US House of Representatives as the Service Members Home Ownership Act (HR3590), which has absolutely nothing – nothing – to do with health insurance mandates or so-called reforms. Per the Obama Administration’s own Justice Department rebuttal to a suit brought on the same subject by the Pacific Legal Foundation:

“…attorneys for the Justice Department argue that the bill originated as House Resolution 3590, which was then called the Service Members Home Ownership Act. After passing the House, the bill was stripped in a process known as ‘gut and amend’ and replaced entirely with the contents of what became the Patient Protection and Affordable Care Act.

“Using HR3590 as a ‘shell bill’ may be inelegant, but it’s not unconstitutional, according to the government motion.”

So, the Obama Administration admits that the bill was foisted on the American people disingenuously and nefariously, Justice Roberts ruled it a tax, and yet Roberts refuses to allow the Supreme Court to hear a case that examines and rules on the constitutionality of exactly the unconstitutional aspects everyone says exist.

The big question is this. Why is Chief Justice John Roberts running interference for the Obama Progressives?

Article III, Section 1 of the US Constitution states:

    “The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.”

Read more at http://freedomoutpost.com/2014/01/justice-john-roberts-rules-obamacare-poorly/#T2YZ1eg0Yhfshe1w.99

Landmark Judicial Legislation

The Judiciary Act of 1802: "An Act to amend the Judicial System of the United States"
2 Stat. 156.
April 29, 1802.

Soon after its repeal of the Judiciary Act of 1801, the Republican majority in Congress in the spring of 1802 recognized the need to enact its own organization of the federal courts. The resulting statute was a response to the practical needs of a growing judiciary and the continuing partisan conflict over the role of the federal courts. The Judiciary Act of 1802 perpetuated the Federalists’ plan of six regional circuits. Although Supreme Court justices again were required to serve on the circuit courts, the circuits were smaller and travel accordingly less demanding than in the 1790s. Kentucky, Tennessee, and Maine remained outside the circuit system, thus relieving the justices of travel to these distant areas. When the district judge and circuit justice were of divided opinion on a case before a circuit court, the new act gave either party the right to refer the case to the Supreme Court, whereas since 1793 split decisions had required the attendance of a second justice to issue a ruling at the next session of the circuit court.

In the Judiciary Act of 1802, Congress eliminated the Supreme Court’s summer session and provided for one annual session to begin on the first Monday in February. This provision intensified the partisan dispute that began when Congress, in an act of March 8, 1802, revoked the judiciary act of the previous year and restored the structure of the judiciary as it had stood previously, thereby abolishing the sixteen judgeships assigned to the reorganized circuit courts. Jeffersonian Republicans asserted that Congress’s right to establish inferior courts implicitly allowed it to abolish such courts. The incumbent circuit judges and their Federalist supporters insisted that judges appointed for service during good behavior could not be removed by statute. When the act of April 1802 canceled the Supreme Court term scheduled for June of that year, Federalists accused the Republicans of seeking to delay a ruling on the constitutionality of the repeal act until months after the new judicial system was in operation.

Chief Justice John Marshall, who entered office in February 1801, doubted the constitutionality of the repeal act as well as the new act’s requirement that the justices resume their circuit duties. Following an exchange of letters in which a majority of the justices concluded that they were obligated to serve on the circuit courts, Marshall deferred to the act. In March 1803, the Supreme Court in the case ofStuart v. Laird ruled that Congress had authority to transfer a case from a court established by the act of 1801 to one established by the act of 1802, and by implication affirmed the constitutionality of the Judiciary Act of 1802.

Further reading:
Haskins, George L., and Herbert A. Johnson. History of the Supreme Court of the United States, vol. 2, Foundations of Power: John Marshall, 1801-1815. New York: Macmillan Publishing Co., 1981. Chapter 5.

Text of Document (http://www.fjc.gov/history/home.nsf/page/landmark_04_txt.html)

11 Supreme Court Cases That Could Change The U.S. In The Coming Year

John Gara/BuzzFeed
WASHINGTON — At 10 a.m. Monday, in the midst of a government shutdown, Chief Justice John Roberts will begin his eighth term at the Supreme Court — beginning a session in which the justices are slated to hear cases affecting the future of legislative prayers, presidential power in making appointments, and whether a meth addict can have a court-ordered mental evaluation used against him in fighting murder charges.
As court-watchers wonder what the term will hold for the future of Justice Ruth Bader Ginsburg and the legacy of retired Justice Sandra Day O’Connor, the justices themselves are preparing for a term that, at the outset, appears to focus on revisiting — and possibly overruling — some precedents established in past decades and considering anew issues at the outer limits of the powers of the three branches of government.

In the first week of the term, the justices will hear a challenge to campaign finance contribution limits. The next week, a Michigan amendment that bars affirmative action in higher education admissions will be at the center of the court’s attention.
Other cases will address whether the impact of housing development decisions can violate the Fair Housing Act and whether roommates can authorize a police search later used against a tenant who previously objected to the search but is no longer there. The Massachusetts law creating a “buffer zone” around reproductive health clinics is being challenged in another case, and the limits of congressional power in enforcing treaties is at question in a case involving the Chemical Weapons Convention.
The incentives against lawsuits enforcing patent rights are at issue in a case that some say could affect the future of innovation in America, and another case about the role of bankruptcy judges — who are not lifetime-tenured judges — could impact the future role of those lifetime-tenured Article III judges.
Here are 11 cases that could change the way America and the government work in the coming year:
1. Presidential Recess Appointments: National Labor Relations Board v. Noel Canning

Jason Reed / Reuters
This case appears to be a courtroom-based continuation of ongoing partisan fighting in a city currently in shutdown mode. And the decision could dramatically alter the balance of power between the president and Congress in the ever-present nominations fight. In answering whether President Obama had the authority to make so-called “recess appointments” of people to the National Labor Relations Board during “pro forma” sessions of the Senate in which no business was to be conducted in January 2012, the D.C. Circuit Court of Appealsheld that he did not.
In a broad ruling, the judges said that the Constitution’s “recess appointment” clause — which allows presidents to fill vacancies temporarily that otherwise would need Senate approval during Senate recesses — only applies to the “intersession” recess between sessions of Congress and not “intrasession recesses” taken during a session of Congress. Although that opinion could have found against Obama’s decision on a more limited reasoning that the Senate was not actually recessed during a time when it held “pro forma” sessions, the D.C. Circuit issued the broader reasoning in its ruling.
The justices took the case and, if the D.C. Circuit’s reasoning becomes the law of the land, could create a significant change in the way nomination battles are fought in D.C.
2. Campaign Finance “Aggregate” Limits: McCutcheon v. Federal Election Commission

Win McNamee / Getty Images
On Tuesday, the justices will consider whether “aggregate” limits faced by political donors are constitutional. Beyond the normal contribution limits, the aggregate limits — $48,600 to candidate committees and $74,600 to non-candidate committees like political parties — are limits on overall contributions to any federal candidates or non-candidate committees within an election cycle.
The Federal Election Commission argues that there has been a different standard applied to contributions than to campaign expenditures since the Supreme Court upheld the post-Watergate federal campaign finance law. Shaun McCutcheon and the Republican National Committee, with support from campaign finance restriction foe Sen. Mitch McConnell, say that distinction should be tossed out by the court or, at least, should nonetheless mean the aggregate limit is unconstitutional.
A broad array of groups has argued in support of the limits, and Public Campaign released a report last week showing how eliminating the limits would, primarily, benefit wealthy, white men. In the shadow of Citizens United, though, supporters of campaign finance restrictions are nervous. As law professor Rick Hasen has written, given the other members of the court, “Liberals have to hope [Chief Justice John] Roberts will show some restraint.”
3. State Affirmative Action Bans: Schuette v. Coalition to Defend Affirmative Action

Next week, the Supreme Court will hear the latest in a long and divisive run of affirmative action cases. In the court’s last term, it made clear that institutions that choose to use any form of affirmative action in higher education admissions need to show, under the tough “strict scrutiny” standard, that the plan is necessary to create a diverse student body. Now the court is considering the other side of that question: Does it violate the Constitution’s guarantee of equal protection when a state bans such considerations in public-university admissions across the state through a constitutional amendment?
Justice Elena Kagan is not participating in the case, but a 4-4 decision would mean the Sixth Circuit’s decision holding the ban unconstitutional would stand, so supporters of the amendment need at least five votes to uphold the amendment. The opponents of the amendment argue, in part, that the “political restructuring” of banning race and sex considerations by amendment limits considerations of those factors in a way that no other factor is limited and, as such, is unconstitutional. Proponents say, to the contrary, that this amendment is, by its terms, nondiscriminatory and could never violate the Constitution.
If the ban is upheld, as many observers expect, expect the foes of affirmative action to turn their attention to forcing other states to follow, and to further limit the scope of affirmative action.
4. Reproductive Health Clinic Buffer-Zone Law: McCullen v. Coakley

Michael Dwyer / AP
In its January decision upholding the Massachusetts law that bans anti-abortion protesters — that is, anyone other than employees, police, and others with a reason to be there — from entering a 35-foot “buffer zone” around the entrance and exits of such facilities, the 1st Circuit judges were clearly frustrated with the challenge: “This case does not come to us as a stranger.”
“The plaintiffs have also marshaled other recent Supreme Court cases in their ambitious effort to reinvent First Amendment doctrine,” Judge Bruce Selya wrote of the First Amendment arguments put forth by opponents of the buffer zone. “For present purposes, it suffices that these decisions, by no stretch of even the most fertile imagination, sully either the reasoning or the doctrinal infrastructure of [the court’s earlier decision upholding the law].” Now however, the Supreme Court will examine whether the law is different from a 2000 decisionupholding a Colorado buffer zone and, more broadly, whether that decision should be limited or overruled.
5. Scope of The Fair Housing Act: Mount Holly v. Mt. Holly Gardens Citizens in Action

The question before the justices with regards to the New Jersey town of Mount Holly is very direct: Can so-called claims about unintentional discrimination still be violations of the Fair Housing Act? Those so-called “disparate impact” claims are raised in those circumstances in which racial or other discrimination may not have been the purpose of a given rule or policy but in which the effect of the rule or policy “disproportionately affects or impacts one group more than another,” as the Third Circuit Court of Appeals held in finding that the Fair Housing Act can be violated by a policy with such a “disparate impact.”
The Supreme Court took the case, and part of the underlying question the justices will consider is whether it should defer to the Housing and Urban Development Department’s policy that such “disparate impact” cases are allowed under the law.
6. Power of Congress to Enforce Treaties: Bond v. U.S.

Carol Bond’s case presents one of the more colorful disputes before the court this term, as she is being charged with violating the Chemical Weapons Convention Implementation Act for, as her lawyer put it to the court, a “domestic dispute, arising out of marital infidelity and culminating in a thumb burn.” Bond, when she found out that her husband was having a child with another woman, secured and placed potassium dichromate and an arsenic-based chemical throughout the other woman’s house. The lawyer writes that the other woman “avoided the easy-to-spot chemicals (potassium dichromate is bright orange) on all but one occasion,” in which she received a minor burn on her thumb.
She was, nonetheless, charged with violating the law that Congress passed in enforcing the Chemical Weapons Convention, and now the Supreme Court will be considering the far larger question raised in a 2005 law review article by law professor Nicholas Rosenkranz of whether Congress is limited by its other constitutional restrictions on federal power in the legislation it passes to enforce treaties.
7. Legislative Prayer: Town of Greece v. Galloway

The Second Circuit Court of Appeals, in a decision by Judge Guido Calabresi, held last year that the town of Greece, New York, opened its monthly board meetings with a “prayer practice” that “impermissibly affiliated the town with a single creed, Christianity,” which will be considered by the justices in November in an appeal by the town. The lawyers for Susan Galloway and Linda Stephens argue that the case is about coercion: “This case is not about the ability of legislators to acknowledge God or seek divine guidance. It is about the right of citizens to participate in local government without being required to participate in sectarian prayers.”
The Obama administration, backing the town of Greece, disagrees, arguing instead that the Supreme Court’s 1983 decision in Marsh v. Chambers makes clear that the long history of such legislative prayers in the country serves as convincing evidence that such prayers do not violate the Establishment Clause.
8. Scope of Article III Judicial Power: Executive Benefits Insurance Agency v. Arkison

Bloomberg / Getty Images
Along with the recess appointment case testing executive power and the chemical weapons treaty case testing legislative power, a third case tests the extent of judicial power in the context of bankruptcy judges. Under Article III of the Constitution, only judges appointed by the president with the advice and consent of the Senate and who are given lifetime tenure can exercise the “judicial power” of the United States. Many federal officials with the title of “judge” — including immigration judges, court of claims judges and bankruptcy judges — do not meet this standard and, as such, cannot exercise judicial power except in limited circumstances.
This case raises the question of whether parties in bankruptcy court can choose to allow the bankruptcy judge to exercise such authority anyway. The case also will look at what type of decisions can be made, given the limits on a bankruptcy judge, in a bankruptcy proceeding. A decision narrowing the power of bankruptcy judges could have the impact of either increasing Article III judicial power or overburdening Article III judges, depending on one’s vantage-point.
9. Self-Incrimination: Kansas v. Cheever

Russell Contreras / AP
“Meth” candy at a Breaking Bad finale watch party.
Scott Cheever, a long-time meth user, shot and killed a Kansas sheriff who had gone to his house to arrest him. Cheever argued at trial that, due to his meth abuse, he did not have the ability to “form[] the premeditation that is a requisite element of capital murder.” The state prosecutor then called a psychiatrist who had examined Cheever under court order when the case had been in federal court to rebut the defense. The Supreme Court will now consider whether a state violates a defendant’s Fifth Amendment rights against self-incrimination when introducing evidence from a court-ordered mental health examination to rebut a mental health experts testimony abut the defendant lacking the required mental state to commit the crime in question.
Although the Obama administration, represented by Solicitor General Donald Verrilli, has weighed in on Kansas’ side in the case, one interesting element of the oral arguments on Oct. 16 will be that Cheever is being represented by Neal Katyal, who served as the administration’s Supreme Court lawyer until Verrilli took over in June 2011.
10. Attorney Fees in Patent Litigation: Octane Fitness v. Icon Health and Fitness

Tuscaloosa News, Michelle Lepianka Carter / AP
When patent holders sue claiming an infringement of their patent, the Federal Circuit has put in place “a rigid and exclusive two-part test for determining whether a case is ‘exceptional’” that makes it difficult for accused infringers to recover attorney fees even if they succeed. The Supreme Court is considering whether this test “rais[es] the standard for accused infringers (but not patentees) to recoup fees” in a way that wrongly takes the authority away from the trial-court judge. Supporters of overturning the Federal Circuit’s rule say it does improperly take away judges’ authority and, moreover, add that such a rule discourages innovation.
11. Co-Occupant Consent: Fernandez v. California

The Supreme Court has previously said that, if two people live together, the police cannot use the results of the search against the first person if that person is present and refuses to allow the police to search the home but then the second person consents to the search. The question raised in Walter Fernandez’s case is: What happens if the first person is not physically present but previously refused to give permission?

Five Issues In The Pipeline:
Abortion-Inducing Drug Limits - Cline v. Oklahoma Coalition for Reproductive Justice(accepted by the Supreme Court for review, but currently on hold because the court sent a question to the Oklahoma Supreme Court for review before it considers the case)
Obama Administration Contraception Mandate - several cases
Religious Liberty and Non-Discrimination Laws - Elane Photography v. Willock
Presidential Protests - Wood v. Moss

http://www.buzzfeed.com/chrisgeidner/13-cases-at-the-supreme-court-that-could-change-the-country

Conservatives likely to write most remaining decisions in Supreme Court’s term

By Robert Barnes

It’s time for the conservative justices on the Supreme Court to get to work.

That’s not an accusation of sloth but a reflection of reality. As the court heads into the crucial final weeks of the term, it is apparent that the great majority of remaining decisions will be authored by the court’s most consistent conservatives.

It’s a conclusion drawn from a numbers game that is unique to the Supreme Court and easy enough even for journalists and lawyers, who often joke that they chose their professions on the promise that there would be no math or hard science.

(That said, we’ve been challenged this term. Justice Clarence Thomas dispensed a two-page primer on DNA sequencing, and from a case involving the Internal Revenue Service, there was this:

Tax = 51.71% x [P- ( FV 9 ) x 4.0027]

Fortunately, it did not require solving the equation to understand that the IRS lost.)

Two facts inform the speculation that always consumes court-watchers this time of year.

One, the court divides each term into seven segments called sittings. And two, each justice generally writes at least one majority opinion per sitting.

So at this point in the term, even journalists and lawyers can master a form of Supreme Court bingo that matches the undecided cases from each sitting with the justices who have not written a majority opinion.

For instance, one of the biggest cases of the term — whether the University of Texas may consider race when making admission decisions — is the only case from the court’s first sitting in October that has not been decided.

And Justice Anthony M. Kennedy is the only justice who has not written an opinion from that sitting.

Doug Kendall of the liberal Constitutional Accountability Center looked at the list of remaining cases and came to the same conclusion as others, writing:

“Working through these statistics sitting-by-sitting, Justice Kennedy and the Court’s conservatives stand ready to author some of the most important rulings of the Term.”

Of course, with the composition of this particular Supreme Court, that is something of a truism. But this term’s numbers really underscore the point.

With only two weeks left in the term, the court’s four-member liberal bloc — Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan — has produced a combined 30 majority opinions.

On the other hand, the court’s four most consistent conservatives — Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Samuel A. Alito Jr. and Thomas — have produced only 20.

Ginsburg, the senior justice among the liberals, has written nine opinions, more than any other justice. Alito, one of the most conservative, has turned in only three.

(The statistics-gatherers at SCOTUS blog make it particularly easy to play this game at home.)

Only two cases remain from the February sitting, one of them among the most important of the term: the continued viability of a key section of the Voting Rights Act. The case concerns Section 5, which requires federal approval of any voting-law change in certain states and jurisdictions that Congress found had discriminated in the past.

The bad news for those who say the law is still vitally necessary: Only Roberts and Scalia have not written an opinion from that sitting. Both were sharply critical of the law during oral arguments, and Roberts warned in a previous case that Section 5 may no longer meet constitutional muster.

From the March sitting came the court’s marquee cases of the term — the two involving same-sex marriage — as well as a voting-rights challenge to an Arizona law. All four of the court’s liberals have written opinions in noncontroversial cases from that sitting; only Thomas among the conservatives has authored an opinion from then.

Of course, it doesn’t require a scorecard to know that Kennedy probably holds the key to the use of affirmative action in higher-education admissions. (The bigger question is what’s taking so long: The court has decided 46 cases argued after Fisher v. University of Texas.)

Likewise, he was the focus of arguments in the same-sex marriage cases: whether theDefense of Marriage Act unconstitutionally withholds federal benefits from same-sex couples legally married where they reside, and California’s Proposition 8, prohibiting same-sex marriage in that state.

His pivotal role reflects that while Kennedy most often sides with conservatives, he wrote the court’s most recent victory for gay rights and has not been as willing as others on the right to prohibit racial considerations.

But even more-predictable justices are capable of surprise. At this time last year, opponents of the Affordable Care Act would have felt reasonably good about their chances if they’d known that Roberts was writing the opinion. Only once before had he sided with the court’s liberals to decide the outcome of a case.

What will this term’s surprise be?

http://www.washingtonpost.com/robert-barnes/2011/05/20/AFZRhx7G_viewAll.html

A Conversation About Judicial Powers and Article III

Here are the judicial powers and I find no language that permits them to expand their areas of influence without a usurpation which is expressly prohibited.

Article. III.
Section. 1. The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.

Section. 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; — to all Cases affecting Ambassadors, other public Ministers and Consuls; — to all Cases of admiralty and maritime Jurisdiction; — to Controversies to which the United States shall be a Party; — to Controversies between two or more States; — between a State and Citizens of another State [Modified by Amendment XI]; — between Citizens of different States; — between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Section. 3. Treason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

Reply from other -
I would like to make another statement concerning the Constitution. So long as we permit "interpretation" of the Constitution by ideologues bent on a move to a Government not delineated by the actual words of the Constitution, then quoting the Constitution means little in reality. Those who pervert the Constitution know full well what the Constitution says and means and they purposely disregard it. Even if we impeached and removed the offending Justices, how do we undo 100 years of settled laws that these miscreants promoted? Most of the damage has occurred by using the "commerce Clause". The founding fathers could have saved a lot of time by just putting a commerce clause in the Constitution and be done with it.

more...
What you propose is in error - you can not "TAX A BUSINESS". A government can only increase the COST OF GOODS SOLD - which will always go to the ultimate consumer of product or service. I will go even further - it will cost the consumer more than the government collects because all businesses have OVERHEAD EXPENSES - these typically run from 20 to 50% of sales. So, if the model is a 50% overhead and you want it to provide $ 1.00 in tax leaving out the complicated math - the company would need to collect $ 1.50 from the consumer.

more on the 16th . .
Constitutional Professors do not understand the Constitution they change words and the meanings of words to "create" the end result they seek. Below is an example of a communication between me and a Constitutional Law Professor. I asked him about the conflict of the 5th amendment protection against "TAKING" of property without just compensation even when for the public good. How does that explain the conflict with the 16th amendment (and Progressive tax rates which are no where in the Constitution so are they Unconstitutional?).

You can see quickly - as they deflect the "INCOME TAX" as not being "PROPERTY" but income (which is MONEY and money is property according to the Founders). They use new laws and new words to develop new laws which to create more case law decisions. It is the usurping of powers in my humble opinion.

Mr. Colorado:
I'm not sure I understand what you mean. The 16th amendment does not specify the tax rates, and in any case as a later amendment would trump the 5th.
Anyway, the "property" protected in the 5th does not include income as it is earned. I applies to realty and personalty. Real estate taxes, even progressive ones are constitutional (as "direct taxes") if Congress wished to impose them, which it does not.

Scalia: 'High-Handed' Kennedy Has Declared Us 'Enemies of the Human Race'

By Tim Grieve
Updated: June 26, 2013 | 1:33 p.m.
June 26, 2013 | 10:15 a.m.

Dissenting from this morning's opinion on the Defense of Marriage Act, Justice Antonin Scalia – as expected – holds nothing back.

In a ripping dissent, Scalia says that Justice Anthony Kennedy and his colleagues in the majority have resorted to calling opponents of gay marriage "enemies of the human race."

(continued below)

But to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to con- demn, demean, or humiliate other constitutions. To hurl such accusations so casually demeans this institution. In the majority's judgment, any resistance to its holding is beyond the pale of reasoned disagreement. To question its high-handed invalidation of a presumptively valid statute is to act (the majority is sure) with the purpose to "dis- parage," "injure," "degrade," "demean," and "humiliate" our fellow human beings, our fellow citizens, who are homo- sexual. All that, simply for supporting an Act that did no more than codify an aspect of marriage that had been unquestioned in our society for most of its existence— indeed, had been unquestioned in virtually all societies for virtually all of human history. It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race.

Scalia says that the court's holding – while limited to the Defense of Marriage Act – is a sure sign that the majority is willing to declare gay marriage a constitutional right.

It takes real cheek for today's majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here—when what has preceded that assurance is a lecture on how superior the majority's moral judgment in favor of same-sex marriage is to the Congress's hateful moral judgment against it. I promise you this: The only thing that will "confine" the Court's holding is its sense of what it can get away with.

And, he says, the holding will short circuit the debate over gay marriage that should have been carried out in the states.

In the majority's telling, this story is black-and-white: Hate your neighbor or come along with us. The truth is more complicated. It is hard to admit that one's political opponents are not monsters, especially in a struggle like this one, and the challenge in the end proves more than today's Court can handle. Too bad. A reminder that disagreement over something so fundamental as marriage can still be politically legitimate would have been a fit task for what in earlier times was called the judicial temperament. We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide.

But that the majority will not do. Some will rejoice in today's decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better. I dissent.

http://www.nationaljournal.com/domesticpolicy/scalia-high-handed-kennedy-has-declared-us-enemies-of-the-human-race-20130626

SUPREME COURT CONFLICT

The Court rejects DOMA – the Federal government has no power over marriage. They even found that the Appeals court had no right or power to hear the case. So, Marriage is a State issue and power to define.

I have long held that issues such as these have no foundation in the Constitution and therefore the limits of the Court as defined in Article III can not flow up to the Courts actions after Marbury V Madison and McCulloch V Maryland – they invented powers not given – yes they just USURPED THE CONSTITUION but Congress did nothing.

The Courts then adopted the British Common Law Case Law Precedent theory, again they have no foundation in the actual Constitution to do such. Congress and the Executive can not give the Courts these powers as they themselves have no foundation in the actual language of the Constitution to grant such extensive sweeping powers to the Judiciary.

The court then makes a decision that the Attorney General can file suits against States for their Legislative district maps and voter ID requirements. Again where is the foundation for such expansive Federal powers over States business? Again then they toss out making decisions on University admission standards – they send all this back to lower courts to rehash the issues.

Like the Kelso condemnation case the Court regularly exceeds it's powers and the States do not use Article V powers to stop the usurping. As things are now operating we are governed by nine BLACK ROBES – not unlike the the Politburo -

The very first politburo was created in Russia by the Bolshevik Party in 1917 to provide strong and continuous leadership during the Russian Revolutionoccurring during the same year. However, after the Bolshevik's insurrection in Petrograd, the politburo was dissolved and the Central Committee became the governing body of Russia. During the twentieth century, nations that had a politburo included the USSR, East Germany, Afghanistan, Czechoslovakia and China, amongst others. Today, there are five countries that have a communist politburo system (China, North Korea, Laos, Vietnam, and Cuba).

In Marxist-Leninist states, the party is seen as "the vanguard of the people" and from that legitimizes itself to lead the state. In that way, the party officials in the politburo informally lead the state.

In the Soviet Union for example, the General Secretary of the Communist Party did not necessarily hold a state office like president or prime minister to effectively control the system of government. Instead, party members answerable to or controlled by the people held these posts, often as honorific posts as a reward for their long years of service to the people's party. On other occasions, having governed as General Secretary, the party leader might assume a state office in addition. For example, Mikhail Gorbachev initially did not hold the presidency of the Soviet Union, that office being given as an honour to former Soviet Foreign Minister Andrei Gromyko. Joseph Stalin ruled the Soviet Union for well over a decade before assuming the governmental position of Premier of the Soviet Union during World War II.

Officially, the Party Congress elects a Central Committee which, in turn, elects the politburo and General Secretary in a process termed democratic centralism. Thus, the politburo was theoretically responsible to the Central Committee. Under Stalin this model was reversed, and it was the General Secretary who determined the composition of the Politburo and Central Committee. This tendency decreased to some extent after Stalin's death, though in practice the Politburo remained a self-perpetuating body whose decisions de facto had the force of law.

Rather disturbing is it not . . ?

Mangus Colorado

Source: Getty Images

Justice Thomas Shows Again that the Federal Emperor Has No Constitutional Clothes

By ILYA SHAPIRO JUNE 14, 2013

Yesterday’s unanimous Supreme Court opinion in American Trucking Associations v. City of Los Angeles is a run-of-the-mill federal preemption case, not inviting much attention. But the interesting bit isn’t Justice Kagan’s majority opinion. It’s Justice Thomas’s short concurrence. Thomas agrees that federal law trumps conflicting state/local law regarding certain regulations related to the Port of Los Angeles, but seizes on the plain language of the preempting statute to take a shot at the massive expansion of federal authority under a misreading of the Commerce Clause.

Justice Thomas focuses on a section of the relevant statute (the Federal Aviation Administration Authorization Act, or FAAAA–don’t ask why this covers ports) titled “Federal authority over intrastate transportation.” He denies that Congress possesses this authority: the Commerce Clause, part of Article I, section 8, only gives Congress the power to regulate commerce “among the several States.” Thomas can’t believe that Congress could have been granted power to legislate something so local as where trucks park once they leave the port (one of the regulations at issue in American Trucking):

Congress cannot pre-empt a state law merely by promulgating a conflicting statute–the preempting statute must also be constitutional, both on its face and as applied. As relevant here, if Congress lacks authority to enact a law regulating a particular intrastate activity, it follows that Congress also lacks authority to pre-empt state laws regulating that activity

The reason that Justice Thomas nevertheless concurs in the judgment here, however, is that Los Angeles waived any constitutional claims against the FAAAA, instead relying solely on statutory arguments (which correctly lost 9-0).

This isn’t the first time that Thomas upheld a federal law but noted federalism concerns that, as here, the plaintiffs didn’t raise (or didn’t preserve on appeal). In Gonzales v. Carhart, for example, Thomas concurred with a majority decision that sustained the federal Partial-Birth Abortion Ban Act against a challenge based on Roe v. Wade and Planned Parenthood v. Casey but noted that the issue of whether a federal abortion regulation “constitutes a permissible exercise of Congress’ power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it.”

Justice Thomas’s opinions in these sorts of cases illustrate the misuse of the Commerce Clause given the Constitution’s careful enumeration of congressional powers. These brief, pointed concurrences show that our imperial government isn’t clothed in constitutional authority.

And they also have a direct use for legal practitioners. I wasn’t a “real” lawyer for that long before joining Cato, but here’s an easy practice tip: Don’t just assume that the federal government has the power to pass the law, you don’t want applied to your client.

Justices agree to decide president’s authority to make appointments when Senate is in recess..

Supreme Court to weigh in on Obama’s recess appointments
By Robert Barnes, Monday, June 24, 8:33 AM

The Supreme Court announced Monday that it will decide next term whether President Obama exceeded his constitutional authority by making appointments while the Senate was on break last year.

The case at hand involves Obama’s appointment of three members of the National Labor Relations Board (NLRB), but the broader issue concerns the power that presidents throughout history have used to fill their administrations in the face of Senate opposition and inaction.

The justices will review a broad ruling by a panel of the U.S. Court of Appeals for the District of Columbia Circuit that upset decades of understanding about the president’s recess appointment power. The court ruled that presidents may make recess appointments only between enumerated sessions of the Senate, not when senators take an intra-session break.

Solicitor General Donald B. Verrilli Jr. said in a petition to the Supreme Court that such a reading of the clause would “drastically curtail the scope of the president’s authority.”

In addition, the Supreme Court will consider a narrower question presented by the specifics of Obama’s January 2012 appointments: whether the president can make appointments when the Senate is holding pro forma sessions designed to thwart such action.

Obama has used the recess appointments power fairly modestly compared with recent predecessors. But he went where no other president had gone in his appointment of the three NLRB members and his appointment of Richard Cordray to head the fledgling Consumer Financial Protection Bureau.

Senators had gone home, but the Senate was holding pro forma sessions by convening with one senator every three days.

The White House justified appointing the NLRB members by reasoning that the Senate actually was in recess because it was not available to fulfill its advice-and-consent role by conducting business.

A challenge brought by a Pepsi bottler in the state of Washington and backed by the U.S. Chamber of Commerce went to the D.C. Circuit. But the unanimous panel skipped past the question of pro forma sessions for a far broader ruling.

D.C. Circuit Judge David B. Sentelle wrote that the administration’s interpretation of when recess appointments may be made would give the president “free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction.”

The ruling interpreted the Constitution’s directive that “the president shall have power to fill up all vacancies that may happen during the recess of the Senate” to apply only between sessions of the Senate, not merely when the senators are on a break, even an extended one.

The panel gave great weight to the Framers’ use of “the recess” rather than “a recess.”

Additionally, the panel also voted 2 to 1 that the phrase “vacancies that may happen” means only those openings that arise during the recess, not those that already exist when the recess occurs.

The ruling cast doubt on hundreds of decisions the NLRB has made in the past year, ranging from enforcement of collective-bargaining agreements to rulings on the rights of workers to use social media.

Both the government and the challengers asked the court to take the case to settle differing interpretations of the recess appointments clause.

The U.S. Court of Appeals for the 3rd Circuit earlier this year agreed that recess appointments could come only between sessions of the Senate.

But the U.S. Court of Appeals for the 9th Circuit came out the other way in 2005, and the Supreme Court at the time declined to review the decision.

When the clause was written, it could take weeks for senators to get to the Capitol. But partisan gridlock has made the recess appointment an important modern tool for presidents who are trying to get their nominees past a recalcitrant Senate.

In asking the justices to take the case, Verrilli said presidents have made more than 500 appointments during inter-session recesses, including “three cabinet secretaries, five court of appeals judges, 10 district court judges, a Director of Central Intelligence, a Chairman of the Federal Reserve, numerous members of multi-member boards, and holders of a variety of other critical government posts.”

The pro forma sessions were pioneered by Senate Majority Leader Harry M. Reid (D-Nev.) to thwart nominees of President George W. Bush. Republican senators have used them during Obama’s terms in office, and have filed a brief with the court saying justices should also consider the question of pro forma sessions that the D.C. Circuit bypassed.

“The president’s claimed authority to name principal federal officers without the Senate’s consent while the chamber has declared itself in session has no basis in the Constitution,” said the brief filed by all Republican senators.

The case is National Labor Relations Board v. Noel Canning.

http://wapo.st/144Ic8L

Peter Martin Jaworski: Originalism All the Way Down: Or, the Explosion of Progressivism

Mike Rappaport 06/15/2013

Peter Martin Jaworski (Georgetown University) has posted Originalism All the Way Down: Or, the Explosion of Progressivism (Canadian Journal of Law and Jurisprudence, Forthcoming) on SSRN.

Here is the abstract: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2257015

At least on its face the very same problems of interpretation apply to the written judgments of the Supreme Court as apply to written constitutions and statutes. Whenever the meaning of a ruling, or some part of it, is not immediately apparent — maybe because the still-standing precedent is decades old and written in a manner that would now be anachronistic, or because the Justice writing the opinion was laconic — should we try to discern what the Justices intended or meant to say? Should the guide, instead, be what a reasonable person would understand by the text at the time of the promulgation of the relevant ruling? If the ruling still stands, but is decades old, shall we breathe life into it by reading it in accordance with contemporary values? Shall we make use of records of oral argument, or what Justices may have said extra-judicially, or will we restrict ourselves to the text of the ruling alone?

In this essay, I assess the question of what is an appropriate doctrine of ruling interpretation by applying the arguments of the living constitutionalists to Supreme Court rulings. Contemporary proponents of a progressive doctrine of interpretation for constitutions — variously called the ‘living tree,’ ‘living force,’ or ‘living constitution’ doctrines of interpretation — appear to embrace two theses. The first thesis, which we can call the ‘progressive thesis,’ is the view that the Supreme Court ought to ensure that our highest laws are in compliance with contemporary values. The second thesis is the ‘doctrine of judicial supremacy’ which maintains that all lower judicial and non-judicial actors are to accept and adhere to the rulings of the Supreme Court.

I argue that these two theses—the progressive thesis and the doctrine of judicial supremacy — are in tension with one another. Embracing the second thesis requires abandoning the first, while embracing the first thesis requires abandoning the second. Contemporary living constitutionalism, as defended by prominent advocates like Chief Justice Beverly McLachlin, Justice Ian Binnie, Australian Justice Michael Kirby, legal scholar Peter Hogg, and others, is incoherent.

In the end, those who embrace the progressive thesis must rely on the claim that the Supreme Court ought to have a monopoly on the use of progressive interpretation, and that lower courts and non-judicial actors must use originalist methods for interpreting the text of Supreme Court rulings. To make this argument, the advocates of progressive constitutional interpretation must be advocates of originalism — not half-hearted supporters, but enthusiastic, full-on supporters, however much they may, elsewhere in their writings, condemn originalism as a practically-flawed, unworkable, or unenlightened method of interpretation.
Via Legal Theory Blog. http://lsolum.typepad.com/legaltheory/2013/06/jaworski-on-originalism-progressivism.html

Supreme Court Rules for Raisin Farmers

Obama's Supreme Court Losing Streak: 0-3 in Property Rights Cases

    Damon W. Root Jun. 12, 2013 1:16 pm

    On Monday, the Supreme Court ruled 9-0 that a group of California raisin farmers may proceed with a constitutional challenge against a New Deal-era law forcing them to turn over a portion of their crop to the federal government without compensation in order to reduce supply and fix prices. As I noted in my report on the ruling, this is the second unanimous defeat this term for the Obama administration in a 5th Amendment Takings Clause case.

    That’s not exactly a great track record for the White House, though as George Mason University law professor Ilya Somin observes, it actually gets worse if you broaden the category to property rights more generally. That’s because last term, in Sackett v. Environmental Protection Agency, a unanimous Supreme Court rejected Obama’s argument that the EPA may issue regulatory commands to property owners without having to subject those commands to judicial review by the courts. “There is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into ‘voluntary compliance’ without the opportunity for judicial review,” the ruling declared.

    So that’s three major property cases and three resounding defeats for the Obama administration. As Somin puts it, “what these rulings really reflect is that the administration took such extreme positions that even liberal justices generally unsympathetic to property rights claims could not swallow them.”

    http://reason.com/blog/2013/06/12/obamas-supreme-court-losing-strea...

The Supreme Court and the Constitutional Convention

Louis J. Sirico Jr. Villanova University School of Law April 29, 2013
Journal of Law and Politics, Vol. 27, No. 1, 2011 Villanova Law/Public Policy Research Paper No. 2013-3025

Abstract: This article offers the first extensive study of the Supreme Court’s reliance on the debates of the Constitutional Convention. It begins with an account of the historical record of the Convention. It then catalogues instances in which the Court has referred to the debates, supplies information on the purposes for which the Court engaged in this reliance, and offers five findings based on the data. The article also offers a limited qualitative analysis of three prominent cases arising at different times in the Court’s history: Dred Scott v. Sandford, Morrison v. Olson, and U.S. Term Limits, Inc., v. Thornton. It analyzes how the Court employed the Convention records in these cases. The article concludes with some conclusions about the role of constitutional history as a method of persuasion in briefs and judicial opinions.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2257985

Supreme Court: Arizona law requiring citizenship proof for voters is illegal

Published June 17, 2013
Associated Press

WASHINGTON – The Supreme Court ruled Monday that states cannot on their own require would-be voters to prove they are U.S. citizens before using a federal registration system designed to make signing up easier.

The justices voted 7-2 to throw out Arizona's voter-approved requirement that prospective voters document their U.S. citizenship in order to use a registration form produced under the federal "Motor Voter" voter registration law.

Federal law "precludes Arizona from requiring a federal form applicant to submit information beyond that required by the form itself," Justice Antonia Scalia wrote for the court's majority.

The court was considering the legality of Arizona's requirement that prospective voters document their U.S. citizenship in order to use a registration form produced under the federal "motor voter" registration law. The 9th U.S. Circuit Court of Appeals said that the National Voter Registration Act of 1993, which doesn't require such documentation, trumps Arizona's Proposition 200 passed in 2004.

Arizona appealed that decision to the Supreme Court.

"Today's decision sends a strong message that states cannot block their citizens from registering to vote by superimposing burdensome paperwork requirements on top of federal law," said Nina Perales, vice president of litigation for the Mexican American Legal Defense and Educational Fund and lead counsel for the voters who challenged Proposition 200.

"The Supreme Court has affirmed that all U.S. citizens have the right to register to vote using the national postcard, regardless of the state in which they live," she said.

Read more at http://www.foxnews.com/politics/2013/06/17/supreme-court-arizona-citizenship-proof-law-illegal/#ixzz2WUDnc3LT

NOTE regarding above written by Lawman: Today the USSC of Appeals by a vote of 7-2 knocked down Arizona law of proof of citizenship to file by a Federal registry form via drivers license application to vote.
Basically the descision, written by Scalia opens the arena for all non-citizens U.S. citizens the ability to vote without having to show any form of identification to register. to vote or vote in elections.

However, the 15th, 19th, 24th and 26th Amendment specifically gives that right to U.S. Citizens as well as the U.S. Constitution.....
Another blatant and obvious unconstitutional decision by the holy 9. I am sure that certain political party members from all sides will take this to full advantage and put more pressure to pass the Amnesty bill....more votes.

This is a very serious breach of Citizen and State rights. Perhaps we should also consider repeal of the 23th amendment.

Can the President increase Congress’s legislative power by entering into a treaty?

A very interesting South Carolina Case regarding treaties and legislative power! See the filed Brief here: http://www.cato.org/sites/cato.org/files/wp-content/uploads/bond_ii_amicus_final_5-15-13.pdf?utm_source=Cato+Institute+Emails&utm_campaign=9194b4a2ea-events&utm_medium=email&utm_term=0_395878584c-9194b4a2ea-141511454

Our very own "Lawman" contributor is responding to the Supreme Court's ruling regarding DNA "swabbing" on arrest article posted further down the page!

“My Lips Are Sealed”

Compliments of Lawman

IV Amendment – Constitution of the United States
"The right of the people to be secure in their person, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized". [Bold emphasis is mine.]

The recent United States Supreme Court of Appeals split decision expanding Law Enforcements warrantless search is a land mark case on the IV Amendment. The original case comes out of Maryland from an arrestee named King. During the process of the arrest a cotton swab was inserted into his mouth and a sample of Mr. Kings DNA was taken, against Mr. King’s consent and state law. Maryland only allows the swabbing for DNA for violent suspects, such as murder or rape...Wisconsin on the other hand hails this as a victory to support a budget to DNA swab the mouths of 68,000 suspects of felonies and misdemeanors per year as well as convicts already imprisoned.

In the state where I come from by State Constitution, the only "authority" that can obtain and execute a search warrant is a police officer. The requirement set in the IV Amendment is the guideline, and very strict State guidelines must be followed. The Officer presents his affidavit and prayer to a Judge who then confirms the facts of the warrant and signs it. Most warrants have a 5 or 10 day service line...after that reapplication is a requirement.

Warrant-less searches generally fall under two categories: 1)Plain view; 2)Outside looking in, such as a marijuana plant sitting on a window sill.
On View: Is on the inside "viewing" fruits of a crime in open view, such as cocaine on the coffee table.

Here are few things that concern me with this decision:

-The ability of Government to stockpile DNA samples for future use, and for whatever purpose Government deems appropriate.
-The ability for enforcement agencies to "go fishing" into "cold case" files without cause or reason to do so.
-This applies to anyone being arrested, whether rightly or wrongly.
-Expands the barrier of exterior person and internal person for evidential verification.
-Element of time importance.

DNA can be gathered from most anything....hair brushes, eating utensils, shoes, socks or any item that a person would leave skin, blood or saliva, the topic and base of the Supreme Court Decision. One of the requirements for any warrant is informational fact on the level of preponderance, or more than 51% of insurability that the information is true and reliable.

Evidence while in the open and can be viewed by the general public does not need a warrant to seize that evidence. This, in my opinion also applies to a human body. It would be even more applicable if not a suspect of a crime or charged with a crime. If you don't see it, you don't get it without warrant.

Warrants are issued within time restrains for a purpose....the destruction of potential evidence is vital to prevent. Any preservation of evidence is primary in the conviction of suspect(s). Individual human or animal DNA does not go away or be changed or altered.
Why is this a bad decision?

During the arrest procedure, it is always common practice to fingerprint which are readily and easily obtainable and fairly easy to process. DNA, just like finger prints does not change or go away. This procedure that is medically intrusive can be done later at a medical facility by properly trained medical personnel.

When the swab is obtained, it must be sent to a forensics lab to be processed...so what's the rush? In addition, if the arrestee refuses to give up their saliva they can be physically assaulted and further restrained to obtain that sample....against their right to "secure(ing) their person".
The gathering by Law Enforcement agencies of data for non-suspects/arrestees for non-prosecutory purposes is not within the criminal justice systems arena of authority.

The accumulation of personal data at a central location is subject to incursions by the private sector and used commercially and/ or selling the information.

The central site is subject to misuse by enforcement agencies of Government.

Evidence gathered in this manner is not so important that it will be destroyed before a warrant can be obtained in the proper manner. A DNA sample can be taken at the arrestees/suspect arraignment with a court order for a urine sample.....

The United States Supreme Court of Appeals has no authority to expand the Bill of Rights.

The United States Supreme Court of Appeals does not have the authority to hear this case under Article III of the Constitution.
This decision broadens the ability to gather evidence against a person’s will, subject to assault, for the possibility of future prosecution, is forced self-incrimination and is outside the realm of being a suspect of or in a crime by law enforcement agents that have not the authority to do so nor the proper medical training to apply.

In Summation:
I'm sure there is more far reaching impacts in our daily lives with this decision. The vote was done on non-political lines it seems. The conservatives voting the decision and the liberals descending in a 5-4 split. It is obvious that both sides of this issue have no concept of the Founding Fathers intention in writing the Bill of Rights nor a concept of Constitutional Law because it is not within Article III for them to hear this type of case. It was never the intentions of our Founding Fathers to give enforcement agencies this power of neither personal violation nor lump-summing all arrested citizens as criminal or suspect of crimes yet committed or never committed. The U.S. Supreme Court has no jurisdiction in ruling on State rights to make their own laws and enforce those laws. What is next, DNA swabs at the issuance of a Traffic Citation? Kinda gives a whole new meaning to "swabby"......

My responsibility when I was a Law Enforcement Officer and my oath of office was to uphold and defend the Constitution of the United States and the citizens residing within my State. This is an unlawful ruling reached by a panel of unconstitutional Judges for unconstitutional purposes.
My very strong suggestion to all Law Enforcement Officers and potential Law Enforcement Officers is: IGNORE THIS DECISION.

Don't forget to close the gate please.
Lawman

Federal Judge Rules for Property Rights, Smacks Down Abusive Feds

Monday, 03 June 2013 16:06

Written by William F. Jasper The New American
In an historic 104-page ruling, Chief Judge Robert C. Jones of the Federal District Court of Nevada has struck a major blow for property rights and, at the same time, has smacked down federal agencies that have been riding roughshod over Western ranchers and property owners. The long-awaited ruling, which had been expected before the end of last year, was finally issued at the end of May. The court case, U.S. v. Hage, has been keenly watched by legal analysts and constitutional scholars — but has been completely ignored by the major media.

As we reported last November ("Judge Blasts Federal Conspiracy; Ranch Family Vindicated — Again!"), in June 2012, Judge Jones had issued a scorching preliminary bench ruling that charged federal officials of the U.S. Forest Service (USFS) and the Bureau of Land Management (BLM) with an ongoing series of illegal actions against Nevada rancher E. Wayne Hage (shown on left) that the judge described as “abhorrent” and a literal, criminal conspiracy.

Judge Jones said he found that “the government and the agents of the government in that locale, sometime in the ’70s and ’80s, entered into a conspiracy, a literal, intentional conspiracy, to deprive the Hages of not only their permit grazing rights, for whatever reason, but also to deprive them of their vested property rights under the takings clause, and I find that that’s a sufficient basis to hold that there is irreparable harm if I don’t … restrain the government from continuing in that conduct.”

In fact, Judge Jones accused the federal bureaucrats of racketeering under the federal RICO (Racketeer Influenced and Corruption Organizations) statute, and accused them as well of extortion, mail fraud, and fraud, in an effort “to kill the business of Mr. Hage.”
The Hage family has waged a heroic decades-long legal battle against these abusive agencies, in a David vs. Goliath contest against the combined might of the U.S. Department of Justice and the BLM/USFS legal teams. Precious few individual citizens are willing to undertake such a seemingly hopeless and costly effort as to challenge the formidable power and bottomless resources of the federal government. Wayne Hage and his wife Jean did so repeatedly, winning judgements only to have them endlessly appealed by the taxpayer-funded agencies. Jean Hage died in 1996. Wayne Hage and his second wife, former U.S. Congresswoman of Idaho, Helen Chenoweth Hage, both died in 2006.

The Hage’s son, Wayne N. Hage (shown next to father), and other family members have continued ranching and have continued the legal fight. Hage hailed Judge Jones’ May 24 decision as a landmark ruling for property rights, which the American Founding Fathers recognized as the bedrock of liberty and an essential security against tyrannical government.   "This decision is landmark for Western ranchers,” Hage commented from the family’s Pine Creek Ranch in Nevada. “I am pleased to announce for the ranchers of the Western states that it has been proven that a permit is not simply a revocable privilege, but rather there is a property interest in the permit for the purpose of the Due Process Clause, both procedural and substantive. This is important because it will safeguard rancher’s rights and historical grazing practices."   Hage added, “More importantly we proved a ‘forage right.’ Ranchers in the state of Nevada are protected from trespass within a half-mile from a water source.”

Notably, the court said, "The Government may not abuse its discretion in refusing to renew, or in revoking, a [grazing] privilege." Significantly, the family will be under permanent injunctive relief and the government shall not reduce the Hage's permits by more than 25 percent for any period of time without the courts' consent, and never permanently.   Specifically, the court found, "The Government has abused its discretion in the present case through a series of actions designed to strip the [Hage] Estate of its grazing permits, and ultimately to strip Defendants of their ability to use their water rights." He explained, "Substantive due process protects individuals from arbitrary deprivation of their liberty by government."   The court further explained, "The Government cannot withdraw them (grazing permits) or refuse to renew them vindictively or for reasons totally unrelated to the merits of the application as governed by published laws and regulations, lest the Government abuse its executive power in a way that shocks the conscience."   Because of the government's refusal to consider any grazing applications from the Hages, the court found the subsequent "chain of events is the result of the Government's arbitrary denial of E. Wayne Hage's renewal permit for 1993-2003, and the effects of this due process violation is continuing."

“Government's actions … shocks the conscience of the Court" The court found, "In the present case, the Government's actions over the past two decades shocks the conscience of the Court." This finding, coupled with the court’s finding that agents of the BLM and the USFS engaged in a conspiracy to deprive the Hage family of their vested property rights, opens the door to potential lawsuits against the individual agents personally for their unconstitutional actions.   The ruling chronicles the drama of the 21-day trial in Reno, Nevada, last spring between rancher Wayne N. Hage who, unable to afford an attorney, represented himself, and Mark Pollot, the estate's attorney, who were defending their case against two federal agencies represented by a cadre of attorneys and staff from the Justice Department.   The court noted the government's motive for their pursuit of the present trespass case. "In 2007, ... the Government brought the present civil trespass action against Hage and the Estate" because the USFS and BLM were "unsatisfied with the outcome" in the ongoing related 1991 Constitutional Fifth Amendment takings case of Hage v. U.S. before the U.S. Court of Federal Claims (CFC).    However, during the pendency of the trespass case, the agencies pursued remedies outside the jurisdiction of the court, leading to a referral to the U.S. attorney for obstruction of justice and findings of contempt of court. Specifically, the BLM invited others, including Gary Snow of Fallon, to apply for grazing permits on allotments where the Hages previously had permits; the BLM testified they knew Snow’s cattle would use Hage waters; the BLM and USFS both applied to the State of Nevada for stock watering rights over Hage waters, even though neither agency owns cattle, for the "purpose of obtaining rights for third parties other than Hage in order to interfere with Hage's rights"; and they attempted to intimidate witnesses in the trespass case by issuing trespass notices and demands for payments against persons who had cattle pastured at Pine Creek Ranch, despite having been notified that Hage was responsible for these cattle.   Judge Jones reasoned the trespass notices and demands for payment were meant "to pressure other parties not to do business with the Hages, and even to discourage or punish testimony in the present case." The court noted such demands for payment were even issued to "witnesses soon after they testified in this case."   Tonopah BLM manager, Tom Seley, and Forest Ranger Steve Williams were both found to be in contempt of court, and were referred to the U.S. attorney for possible prosecution for criminal obstruction of justice. Noting that Seley and Williams knew of ongoing litigation between the parties in this court and the CFC, they "took actions to interfere with the defense of the present trespass action by intimidating witnesses." A written order is pending from the separate August 2012 contempt hearing.

A permanent injunction was granted to prevent the government from denying the Hage’s continuation of their grazing permits and from imposing trespass charges against them every time the Hage’s cattle incidentally stray onto BLM/USFS land in the vast open range area. The court noted, "There is great probability that the Government will continue to cite Defendants and potentially impound Defendant's cattle in the future in derogation of their water rights and those statutory privileges of which the Government has arbitrarily and vindictively stripped them."

The court will require Hage to apply for a permit, but will also require the government to grant it. The government is enjoined from issuing trespass or impound notices to Hage or anyone leasing cattle to him; the government must request permission from the court to issue such notices.   The court added, "The government's normal discretion is restricted under the present injunction, an injunction required in this extreme case because of the conspiracy noted and the history of violations of the Hages' due process rights in their permits and vested property rights in the use of water, and the obvious continuing animus against Hage by the government officials charged with administering his permits."   Although Hage noted defending this case created a tremendous personal hardship, “I hold the successful defense of my family’s rights, particularly for the beneficiaries of the Estates, the most important part of this decision and worth all the time and work that went into this case. No longer are we subject to the arbitrary and vindictive rule of man—we now have the protection of the rule of law."   The related Hage v. U.S. takings case has been appealed by the Hages to the U.S. Supreme Court on the narrow issue of whether or not a permit is required for normal maintenance of a historic 1866 Mining Act ditch right-of-way. That case is slated for a June 18 conference in the U.S. Supreme Court to determine if the court will grant the Hage's appeal. A similar right-of-way case from the City of Tombstone, Arizona, is also on appeal to the USSC.

Hage commented from the family’s Pine Creek Ranch in Nevada. “I am pleased to announce for the ranchers of the Western states that it has been proven that a permit is not simply a revocable privilege, but rather there is a property interest in the permit for the purpose of the Due Process Clause, both procedural and substantive. This is important because it will safeguard rancher’s rights and historical grazing practices."   Hage added, “More importantly we proved a ‘forage right.’ Ranchers in the state of Nevada are protected from trespass within a half-mile from a water source.”

It's fantastic news!

http://thenewamerican.com/usnews/constitution/item/15602-federal-ju...

Related articles:
    Judge Blasts Federal Conspiracy; Ranch Family Vindicated — Again!

    Hage Family Vindicated by Court Victory
    Huge Win for Property Owners (2006 interview with Wayne Hage)
    Rancher Wins Fight for Rights (2002 article by Wayne Hage)
    Remembering a champion: Helen Chenoweth-Hage
    Bureaucrats “Giddy” With “Newly Minted Power

Big cases await Supreme Court's 2012-13 term

By Bill Mears, CNN Supreme Court producer
There are 39 appeals on the high court's schedule. As many as three dozen more are expected to be added in coming months. Other controversial appeals that may yet be added to the high court's docket cover issues relate to voting rights enforcement, voter identification laws, same-sex marriage rights, and "personhood" laws for the unborn.

Supreme Court Docket Search

Docket

The automated docket system is the Court's case tracking system. It contains information about cases, both pending and decided. The docket provided on this page contains information regarding the status of cases for both the current Term and the prior Term. The Court's Term begins on the first Monday in October and ends on the preceding day the next year. The October Term 2010 begins on October 4, 2010. Information on the docket is updated on the day after an entry is made on the docket.

Users can search for cases by using a Supreme Court docket number, a lower court docket number, or a case name. The format for Supreme Court docket numbers is "Term year-number" (e.g., 06-123; 07-12; 06-5001.). Word searches can also be accomplished.

Questions Presented. Internet users can review the Questions Presented in granted and noted cases simply by clicking on the hyperlink located within the Docket's case summary information for a particular case. For example, when a user accesses the docket information for case number 07-330, a hyperlink will appear just beneath the decision date within the case summary information. Once the hyperlink is clicked, the user will be linked to a .pdf file setting forth the Question(s) Presented in the case.
http://www.cnn.com/interactive/2012/10/politics/scotus.cases/index.html

Here We Go Again!!

Supreme Court rules police can take DNA swabs from those arrested

Published June 03, 2013
Associated Press
A sharply divided Supreme Court on Monday said police can continue to take DNA from people they arrest without getting a warrant. The court's five-justice majority said DNA testing was a legitimate police arrest procedure, like fingerprinting.

"Taking and analyzing a cheek swab of the arrestee DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment," Justice Anthony Kennedy wrote for the court's five-justice majority.

But the four dissenting justices said that the court was allowing a major change in police powers.

"Make no mistake about it: because of today's decision, your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason," conservative Justice Antonin Scalia said in a sharp dissent which he read aloud in the courtroom.

At least 28 states and the federal government now take DNA swabs after arrests. But a Maryland court was one of the first to say that it was illegal for that state to take Alonzo King's DNA without approval from a judge, saying King had "a sufficiently weighty and reasonable expectation of privacy against warrantless, suspicionless searches."

But the high court's decision reverses that ruling, which will likely allow states to resume and expand the programs. Kennedy wrote the decision, and was joined by Chief Justice John Roberts and Justices Samuel Alito, Clarence Thomas and Stephen Breyer. Scalia was joined in his dissent by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

Read more: http://www.foxnews.com/politics/2013/06/03/supreme-court-rules-police-can-take-dna-swabs-from-those-arrested/#ixzz2VAVqzgNw

This is a very interesting power that the Supreme court has given to federal agencies . .

....they can make their own laws [called rules and regulations without limits? wow BAD decision. Read about it here.... http://www.supremecourt.gov/opinions/12pdf/11-1545_1b7d.pdf

10th Amendment: Federal money tied to power

By Tim Botos
    CantonRep.com staff writer
    Posted Jun 02, 2013 @ 10:00 AM

    Pity poor James Madison.

    He didn’t even want the 10th Amendment included in the Bill of Rights. He believed it was redundant overkill. But to please his colleagues, who were still reeling from British oppression, it was included. And it goes like this:

    The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

    Now, 222 years after its ratification, even the legal experts can’t agree on what the founding fathers meant by that.

    Depending on how you read it, there are two basic schools of thought:

    1. The states’ rights view, which is that federal government should provide only the most basic services, which the states can’t handle on their own.

    2. The view that the amendment simply reiterates an intention of undeclared shared powers.

    Chris Edwards, director of tax-policy studies at the Cato Institute, a Washington, D.C., think tank, said the 10th Amendment has been twisted, torn, stomped upon and shredded in the last century.

    “We now have a federal empire,” he said.

    He has written and spoken extensively on the growth of federal government. Edwards said Congress and U.S. Supreme Court justices have steadily increased federal powers, ignoring the 10th amendment in the process.

    “It is completely upside down,” he said, explaining that 70 percent of all government spending is done at the federal level and 30 percent locally. “The vision of the founders was the opposite ... and they knew that state and local governments were supposed to be the ones closer to the people.”

    By controlling the money, Edwards said, federal government controls policy. “The states have essentially been bought off,” he said.

    Backed by Supreme Court decisions, Congress has passed laws that pressure states to adhere to such things as minimum drinking ages, for example, or face reductions in federal funds for road work in the state.

    AID TO THE STATES

    Edwards has noted that federal financial aid to the states will amount to $561 billion this year. That’s the largest chunk of the national spending budget, aside from Social Security and national defense.

    “There are more than 1,100 of these aid programs out there,” he said.

    They are programs that typically send money to the states, which then divide it among locals. The government’s own Catalog of Federal Domestic Assistance provides an A-to-Y (no programs begin with the letter ‘Z’) index of all of them.

    Some have similar goals and even similar names. For example, nine programs begin with the word ‘Food’: Food Aid Nutrition Enhancement Program, Food and Agricultural Sciences National Needs Graduate Fellowship Grants, Food and Drug Administration Research, Food Assistance and Nutrition Research Programs, Food Distribution Program on Indian Reservations, Food for Education, Food for Progress, Food Safety and Security Monitoring Project, and Food Safety Cooperative Agreements.

    A review of several federal databases reveals that tens of millions of dollars in such aid have made it back to Stark County in recent years to pay for everything from bulletproof vests for police officers and new sidewalks near school buildings, to major road and bridge improvement or replacement projects.

    “The federal government wasn’t supposed to be involved in K-12 education, either,” Edwards said. “But there it is.”

    Race to the Top, Safe Schools and Citizenship Education and Innovation and Improvement are just some of the programs for which many Stark County school districts have received money in recent years.

    THE PEOPLE

    The weight of the 10th Amendment is not a Republican vs. Democrat or Liberal vs. Conservative issue, said Scott Landreth, Ohio Coordinator for the Tenth Amendment Center, founded in 2007.

    “It’s all about adherence to the Constitution,” said Landreth, who lives near Cincinnati. “We’ve looked to the various ratifying conventions held at the time. We believe it was to reiterate the limited powers of the federal government.”

    It’s not that simple, though, say some law experts.

    “There’s no doubt federal government has grown,” said Mark R. Killenbeck, a law professor at the University of Arkansas School of Law. “Even (Alexander) Hamilton couldn’t have contemplated a federal government of this scope.”

    Killenbeck has authored many articles and papers on federalism and American Constitutional history. He also wrote a book about the McCulloch v. Maryland U.S. Supreme Court decision from 1819.

    He points to a Supreme Court ruling in U.S. v. Sprague (1931), when justices weighed in with this on the 10th: “The

    amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers.”

    Killenbeck said most state rights advocates gloss over the phrase “or to the people,” the last clause in the 10th Amendment.

    “The people speak through Congress ... they are part of this dynamic,” he said. “Why do these programs exist? Because the people told Congress it was important to have all these programs ... even all the (controversy) over earmarks. All these earmarks were created because the people wanted them.”

    And if the people don’t like it, he said, every two years they can vote for a new congressman and replace one-third of the Senate.

    Read more: http://www.cantonrep.com/news/x1884777114/10th-Amendment-Federal-mo...

The Supreme Court

The Supreme Court should not be addressing this case! JUST ANOTHER GOOD EXAMPLE OF FEDERAL UNCONSTITUTIONAL OVERREACHING AND USURPING STATES' RIGHTS AND POWERS - check Article III the courts have no such powers and Congress/Executive do not the power to give the courts powers not stated.

This is why our Article V program is so important in restoring freedoms and liberties.

Read more.....http://www.therightscoop.com/scotus-refuses-to-overturn-appeals-court-ruling-that-indiana-cannot-ban-govt-funding-to-planned-parenthood

IRS accused of stealing 60 million medical records belonging to 10 million Americans

The ObamaCare Meltdown Begins

By Arnold Ahlert Thursday, May 30, 2013
While Americans remain focused on the IRS’s targeting of conservative groups applying for tax exempt status, two recently filed lawsuits reveal a far deeper level of alleged corruption at the agency. On May 2, a group of small businesses challenged the IRS’s attempt to illegally implement health insurance subsidies contained in the Affordable Healthcare Act, aka ObamaCare.

On May 14, it was revealed that a class action suit has been filed by a California-based HMO, accusing the IRS of stealing 60 million medical records belonging to 10 million Americans.

The small business group’s suit, filed in the U.S. District Court for the District of Columbia, is the direct result of the Supreme Court’s decision that the part of the healthcare bill requiring Americans to purchase health insurance was constitutional. At the same time, the Court ruled that the federal government could not require states to set up the state-run exchanges necessary to facilitate the purchase of such insurance. As a result, 27 states have opted not to set up exchanges, forcing the federal government to fill the vacuum.

The employer mandate contained ObamaCare requires businesses to offer health insurance to employees, if they have at least 50 full time employees, defined as anyone working 30 or more hours per week. The law also provides IRS-implemented subsidies to help low-income people purchase insurance through the exchanges “established by the state.” If a company doesn’t offer its uninsured workers a policy and those workers end up getting a subsidy, the company will have to pay a fine.

The rub is the aforementioned phrase “established by the state.” The business group contends the subsidy can only be administered in states where the state itself has established the insurance exchange. They contend the IRS is ignoring the law’s constitutional limitations and illegally setting up subsidies in every state, forcing the employers to adhere to the law’s mandates. The IRS’s lawyers contend the language of the statute allows them to set up subsidies regardless of who is running the exchanges.

IRS is running roughshod over the rule of law
It appears the IRS is running roughshod over the rule of law, a reality pointed out in a paper written by Jonathan Adler and Michael Cannon last July, in which they anticipated lawsuits being filed in this regard. They noted that an IRS rule “purports to extend these tax credits and subsidies to the purchase of health insurance in federal exchanges created in states without exchanges of their own,” they wrote. “This rule lacks statutory authority. The text, structure, and history of the Act show that tax credits and subsidies are not available in federally run exchanges. The IRS rule is contrary to congressional intent and cannot be justified on other legal grounds. Because the granting of tax credits can trigger the imposition of fines on millions of individuals and employers, the IRS rule is likely to be challenged in court.”

It is worse than that. As the Washington Post’s Michael Gerson explains, the IRS “seized the authority to spend about $800 billion over 10 years on benefits that were not authorized by Congress.” By law, only Congress can authorize such spending. Michael Cannon notes the political implications. “It doesn’t look good from the road when IRS employees violate the clear language of federal law in a matter that just happens to rescue the top domestic policy achievement of their boss, the president,” he contends. Sam Kazman, general counsel of the Competitive Enterprise Institute, which is coordinating the lawsuit, echoed that sentiment. “ObamaCare is already an incredibly massive program,” he said. “For the IRS to expand it even more, without congressional authorization and in a manner aimed at undercutting state choice, is flagrantly illegal.”

“Flagrantly illegal” is a phrase that provides an apt segue to lawsuit number two. Last month in San Diego, attorney Robert E. Barnes, representing an unnamed firm identified in court records as the “John Doe Company” filed a suit alleging that 15 IRS agents illegally seized the medical records of 10 million Americans. Among those targeted were “every state judge in California, every state court employee in California, leading and politically controversial members of the Screen Actors Guild and the Directors Guild, and prominent citizens in the world of entertainment, business and government, from all walks of life.”

The alleged abuses are shocking. “No search warrant authorized the seizure of these records; no subpoena authorized the seizure of these records; none of the 10,000,000 Americans were under any kind of known criminal or civil investigation and their medical records had no relevance whatsoever to the IRS search,” the suit contends.

The John Doe Company is actually a Health Insurance Portability and Accountability Act (HIPAA) “secure facility,” meaning that it maintains sensitive data on patients that require security measures to be followed. The data include files on psychological counseling, gynecological counseling, sexual and drug treatment, as well as other sensitive medical treatment information.

None of it mattered to the IRS agents. “Despite knowing that these medical records were not within the scope of the warrant, defendants threatened to ‘rip’ the servers containing the medical data out of the building if IT personnel would not voluntarily hand them over,” the complaint reads. “Moreover, even though defendants knew that the records they were seizing were not included within the scope of the search warrant, the defendants nonetheless searched and seized the records without making any attempt to segregate the files from those that could possibly be related to the search warrant. In fact, no effort was made at all to even try maintaining the illusion of legitimacy and legality.”

According to the suit, the IRS had a search warrant authorizing the seizure “of financial records related principally to a former employee of the company.” Yet IRS agents not only seized the medical records, but “personal mobile phones, including all the data and information on those phones, without any employing the proper and procedurally correct screening methods to protect private and privileged information, all of which was completely unapproved by the search warrant.”

The theft of data is so large it affects “roughly one out of every twenty-five adult American citizens,” the complaint states. It further notes that the IRS refuses to reveal which agents participated in the seizure, who saw the records, or where they are currently located. Almost unbelievably, the suit alleges that after the raid was complete, the IRS agents used the company’s media system to watch the NCAA basketball tournament, even as they ordered soft drinks and pizza.

The complaint seeks $25,000 in compensatory damages “per violation per individual,” plus punitive damages for constitutional violations.

Unsurprisingly, Republicans see an opportunity to tie the healthcare bill to IRS corruption along with Democrats running in the 2014 election. Yesterday, Senate Minority Leader Mitch McConnell (R-KY) released an ad linking the president to the IRS scandal. Sen. Marco Rubio (R-FL) posted a YouTube video reminding Americans of the IRS’s ties to ObamaCare. “Now as far as the IRS’s role in Obamacare, well that’s chilling,” Rubio says in the video. “Because if you notice, the IRS is deeply involved in implementing Obamacare. They’re on the front lines of it.”

Rubio may be understating the case. When the healthcare bill is fully rolled out next year, it will require 2,137 IRS agents to implement and police its requirements. Moreover, a recent report by the Treasury Inspector General for Tax Administration reveals that the tax provisions included in ObamaCare “represent the largest set of tax law changes the IRS has had to implement in more than 20 years.”

Thus, as far as Republicans are concerned, the IRS is the gift that keeps on giving. Yesterday, it gave them even more political ammunition. The American Center for Law and Justice (ACLJ) filed a lawsuit on behalf of 25 Tea Party and other conservative organizations, alleging they were unfairly targeted by the IRS with regard to obtaining tax-exempt status. Top agency officials, as well as U.S. Attorney General Eric Holder and Treasury Secretary Jack Lew have been named as defendants. ACLJ contends that these officials violated the First and Fifth Amendments of the Constitution, the Administrative Procedure Act, and the IRS’s own rules and regulations. “The IRS and the federal government are not going to get away with this unlawful targeting of conservative groups,” said ACLJ Chief Council Jay Sekulow. “As this unconstitutional scheme continues even today, the only way to stop this flagrant and arrogant abuse of our clients’ rights is to file a federal lawsuit, which we have done.”

Americans haven’t needed much of a push to despise the IRS or ObamaCare‚ and that was before these ongoing revelations burst onto the national scene. Perhaps, as more of them unfold, the nation will finally reach a tipping point best expressed [http://www.goodreads.com/quotes/4056-a-government-big-enough-to-give-you-everything-you-want] by former president Gerald R. Ford: “A government big enough to give you everything you want is a government big enough to take from you everything you have.”
http://canadafreepress.com/index.php/article/55565

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