The Wall Street Journal has a great summary of the Third Circuit’s opinion invalidating one of President Obama’s NLRB recess appointments:

In a 2-1 decision, Judge D. Brooks Smith ruled in National Labor Relations Board v. New Vista Nursing and Rehabilitation that Mr. Obama’s recess appointment of Craig Becker in March 2010 was illegal because the Senate was not between sessions. To allow such appointees, Judge Smith wrote, “would eviscerate the divided-powers framework the two Appointments Clauses establish.

“If the Senate refused to confirm a president’s nominees, then the president could circumvent the Senate’s constitutional role simply by waiting until senators go home for the evening. The exception of the Recess Appointments Clause would swallow the rule of the Appointments Clause.”

The decision is significant because the Third Circuit panel adopted the reasoning of the D.C. Circuit in January’s Noel Canning decision. But the implications go further. Mr. Becker’s term began earlier than the other recess appointees, thus invalidating hundreds of other decisions that the labor board made without a legal quorum. The number of NLRB decisions jeopardized by the three illegal recess appointments now stand at some 1,200. Yet the Obama NLRB keeps issuing rulings as if it operates in its own legal universe.

Notably, the president’s recess-appointment power, as interpreted by the D.C. Circuit and the Third Circuit’s, is significantly narrower than the power exercised by President Obama’s January 2012 non-recess appointments. Accordingly, even the most modest interpretation of this power by the Supreme Court will likely yield a defeat for Obama. Keep that in mind if the Court invalidates the president’s January non-recess appointments and the Left somehow blames Republicans – it was President Obama’s appointments that, as the D.C. Circuit put it, “eviscerate[d] the Constitution’s separation of powers.”

IRS scandal notwithstanding, on Tuesday, the (Republican-dominated) Texas legislature passed S.B. 346, a bill to force non-profit organizations and trade associations to disclose the names of the people who support them financially. The law exempts unions, but covers groups that spend more than $25,000 or more in independent expenditures about political candidates. This applies even if those expenditures are a tiny fraction of the group’s overall spending.

If Texas legislators had first consulted the Constitution, they would have rejected forced disclosure as a violation of the First Amendment. The Constitution protects organizations from forced disclosure of their members (NAACP v. Alabama, 1958), and does not distinguish between an organization’s members, as with NAACP, and its contributors, as here (Buckley v. Valeo, 1976). Although Buckley upheld the forced disclosure for “organizations that are under the control of a candidate or the major purpose of which is the nomination or election of a candidate,” it first excluded disclosure for “groups engaged purely in issue discussion,” saying the law would have otherwise been “impermissibly broad.” This unconstitutional legislation directly targets those issue-based groups — a 501(c)(4)’s primary purpose is explicitly non-political — and I would expect the First Amendment–friendly Roberts court to agree.

Rumor has it that Governor Perry’s advisers want him to sign the law, but he has not yet announced what he plans to do. During his presidential campaign, he thought that campaign contribution limits were unconstitutional, so one would think this would be an easy question for him.  But one would also think that the Republican-led legislature might have thought twice before embracing such a left-wing policy proposal. Stay tuned.

I’m sorry to say that, with recent changes to NRO’s content-management system and a recent revamping of the website of the Ethics and Public Policy Center (the think tank I head), many of the hyperlinks embedded in my past Bench Memos posts and in my essays—especially hyperlinks to my own previous writings—are temporarily not working properly. I hope to get things fixed soon. (In the meantime, I’ve heard from some readers eager to locate material via inoperative hyperlinks, and I’ve been able to help with some work-arounds, so if that’s your situation, please let me know.)  

My RSS feed has changed to http://nationalreview.com/author/1117/feed. (To receive reader-friendly NRO posts of mine from this service, you will need to enter this address into whichever RSS reader you use.)

In 2010, Congress enacted a law, dubbed the Fair Sentencing Act, that made the mandatory- minimum prison sentences for crack-cocaine offenses more lenient than they had been. Specifically, the Fair Sentencing Act reduced the disparity between crack-cocaine minimum sentences and powder-cocaine minimum sentences from 100-to-1 to 18-to-1.  Last year, in Dorsey v. United States, the Supreme Court ruled by a 5-to-4 vote that the more lenient minimum sentences apply not only to offenders who committed a crack-cocaine crime after the effective date of the Fair Sentencing Act but also to offenders who committed the crime before the effective date but who were sentenced after that date.

Today, in an opinion that will likely surprise all nine justices, a divided panel of the Sixth Circuit ruled (in United States v. Blewett) that the more lenient sentences of the Fair Sentencing Act apply to all crack-cocaine offenders, including those who were sentenced before the Act’s effective date. The justices will be much less surprised to discover that the opinion was authored by Gilbert S. Merritt Jr. and joined by Boyce F. Martin Jr., two Carter appointees who have plagued the Sixth Circuit for more than three decades. It’s notable that the thorough dissent comes not from a Republican appointee but from Clinton appointee Ronald Lee Gilman.

The majority recognizes that “there is no equal protection violation without discriminatory intent,” and it acknowledges that when the 100-to-1 crack statute was adopted in 1986, “there was no intent or design to discriminate on a racial basis.” But it contends that the knowledge gained since 1986 about the disparate impact of the original minimums on blacks means that continued enforcement of those sentences is intentional discrimination. In its words:

A “disparate impact” case now becomes an intentional subjugation or discriminatory purpose case. Like slavery and Jim Crow laws, the intentional maintenance of discriminatory sentences is a denial of equal protection.

Under this illogic, once it becomes known that a law has a (constitutionally permissible) racially disparate impact, the maintenance of that law would suddenly be transformed into intentional discrimination. As Judge Gilman observes, there is no support for such a proposition.

As Judge Gilman spells out, there is much more that is wrong with the majority opinion, from the fact that it rules on an “unbriefed and unargued issue” to its multiple violations of circuit precedent. Let’s see if the en banc Sixth Circuit will repair the damage or will instead leave it to the Supreme Court to do so.

My organization, the Judicial Education Project, has filed a Supreme Court amicus curiae brief supporting the cert petition in Bond v. United States. Bond involves a woman’s federal criminal conviction under the 1993 Chemical Weapons Convention treaty for her attempt to poison her (former) best friend with toxic chemicals. While normally this application of federal law would unconstitutionally violate state sovereignty, the government argues that Article II’s treaty-making power overrides any federalism concerns. Our brief argues that “treaty making is not a substantive power,” so constitutional limits on executive and legislative power also limit the treaty power. In other words, the treaty power cannot expand the scope of federal power wholesale. 

Read the whole brief.

Utah Senators  Orrin Hatch and Mike Lee are praising President Obama’s decision to nominate Judge Carolyn McHugh to the U.S. Court of Appeals for the Tenth Circuit. Judge McHugh is currently the presiding judge of the Utah Court of Appeals.  The Salt Lake Tribune reports on the nomination here, but there is (as yet) no announcement on the White House website.

1954—In Brown v. Board of Education, a unanimous Supreme Court abandons available originalist justifications for its ruling that state-segregated schools violate the Equal Protection Clause—justifications that would have been far weightier, and commanded far more public respect, than its own makeshift reliance on contemporaneous psychological research of dubious relevance. Contrary to conventional understanding, the Court declines to revisit its notorious 1896 ruling in Plessy v. Ferguson and instead limits itself to the question whether the separate-but-equal rule of Plessy “should be held inapplicable to public education.”

1993—Tennessee chief justice Lyle Reid and justice Martha Craig Daughtrey dispute the ruling by the Tennessee supreme court in State v. Marshall that obscenity is not protected speech under the Tennessee constitution. The majority’s ruling, they extravagantly contend, hands “the right most essential to personal dignity and democratic government, the freedom of expression, … into the willing grasp of the censor.” Daughtrey was appointed by President Clinton to the Sixth Circuit later in 1993.

This morning the Senate Judiciary Committee unanimously approved the nomination of principal deputy solicitor general Sri Srinivasan to an open seat on the U.S. Court of Appeals for the D.C. Circuit. All 18 members of the committee voted in favor of his nomination, suggesting Srinivasan will be confirmed relatively quickly. Here is coverage of the vote from the Washington Post and BLT. There are currently four vacancies on the D.C. Circuit, for which Srinivasan is the only pending nominee.

From How Appealing comes news that a divided Third Circuit panel, in NLRB v. New Vista Nursing and Rehabilitation, has ruled that President Obama’s March 2010 recess appointment of Craig Becker to the NLRB was invalid. Specifically, the panel majority holds that the president’s recess-appointment authority is exercisable only during intersession recesses. The panel majority finds it unnecessary to address the separate question whether the word happen in the Recess Appointment Clause (“The President shall have Power to fill up all vacancies that may happen during the Recess of the Senate …”) means that the recess-appointment authority applies only for vacancies that arise during a recess.

I haven’t had time yet to do more than glance at the ruling, so I’ll just note that the D.C. Circuit in its recent Noel Canning ruling against the NLRB ruled both that the recess-appointment authority is limited to intersession recesses and that it is limited to vacancies that arise during those recesses.

On Monday, President Obama made a legal claim that managed to unite writers for The Federalist Society, the Wall Street Journal, and the New York Times. Eileen O’Connor, former assistant attorney general for DOJ’s tax division, summarized the case on the Federalist Society’s blog:

On Friday, White House Press Secretary Jay Carney, and yesterday President Obama himself, declared that the Internal Revenue Service is an “independent agency.”  Not so, unless they are redefining the term.

Most Executive Branch departments are headed by a Cabinet Secretary (except for the Department of Justice, which is headed by the Attorney General of the United States) who is nominated by the President and confirmed by the Senate.  Within the Departments are agencies that carry out the various responsibilities of the Department.  They, too, are headed by Senate-confirmed Presidential appointees.  An “independent agency” is an agency of the federal government that is not part of an Executive Branch department.   These are generally boards and commissions, like the National Labor Relations Board and the Federal Communications Commission.

But just as the Federal Bureau of Investigation is part of the Department of Justice, the Internal Revenue Service is part of the Department of Treasury.  As with other federal agencies, each is headed by a Senate-confirmed Presidential appointee.  Neither of these is an “independent agency.”

Teresa Tritch of the New York Times agrees, and goes on:

One distinction between an executive agency and an independent agency is that the president, typically, cannot dismiss the head of the latter without serious cause. Independent agencies include the Securities and Exchange Commission, the National Labor Relations Board, the Federal Communications Commission and the Federal Trade Commission.

By contrast, the law governing the I.R.S. states that the president can remove the commissioner at will. The commissioner reports to the secretary of the treasury through the deputy secretary.

Since the president’s ability to hire and fire the IRS commissioner is pretty straightforward, the administration has also taken steps to make sure everyone knows that the guy in charge during the scandal was appointed by President Bush. But the Wall Street Journal pushes back:

The White House has also been at pains to stress that former Commissioner Douglas Shulman, who told Congress in 2012 that there had been no targeting of political groups, was appointed by George W. Bush. So the Commissioner is accountable to the President, as long as he’s the former President? Or what?

This attempt to distance Mr. Obama from any control of the IRS is especially rich in light of the Administration’s recent attempts to bend other genuinely independent agencies like the National Labor Relations Board (NLRB) and the Consumer Financial Protection Bureau (CFPB) to its will via non-recess recess appointments. The Administration is currently petitioning the Supreme Court to hear its appeal of the D.C. Circuit’s decision declaring its NLRB recess appointments unconstitutional.

So let’s look at how the U.S. legal code describes the varying standards of Presidential “accountability”: The IRS Commissioner “may be removed at the will of the President.” A labor board member “may be removed by the President, upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.” At the CFPB, the President “may remove the Director for inefficiency, neglect of duty, or malfeasance in office.” The IRS job is not like the other two.

This scandal is getting uglier for the Obama team by the hour. So I am not surprised that they are doing what they can to distance themselves from the wrongdoing. But in this case, as in the AP reporter-monitoring case, President Obama doesn’t need to look very far to find someone who can be held accountable.

The National Catholic Committee on Scouting has issued a statement that, if properly applied, ought to require faithful Catholic scout leaders to vote against the Boy Scouts of America’s proposed resolution to allow openly gay youth members. The NCCS statement reads in part (emphasis added):

The Catholic Church teaches that those who experience same-sex attraction are always to be treated with dignity and respect. The Church also teaches that sexual acts belong within marriage, and that everyone – young or old, married or single – is called to chastity, through which we grow in our understanding of love. These teachings are especially important for those who serve as role models for young people. Because of this, the Church reserves the right to seek to place those who live by its teachings in leadership positions that serve our youth, as well as the right to continue to call our young people to live by the teachings of our faith and by moral truth which can be known by all.

As I have explained, although the proposed resolution purports to retain the BSA’s prohibition of adult leaders who are “open or avowed homosexuals,” its adoption would fatally undermine the BSA’s legal basis, under the Supreme Court ruling in Boy Scouts of America v. Dale, for maintaining that prohibition. In other words, the entirely foreseeable effect of the resolution would be to compel Catholic-sponsored troops to allow openly gay adult leaders who don’t “live by [the Church’s] teachings.”

The NCCS statement is far too generous in crediting the BSA “for the seriousness with which it has approached the inclusion of adult leaders and youth who experience same-sex attraction.” In fact, the BSA within the space of three months has floated two dramatically different proposals that have in common only the feature that in practice each would lead readily to a wholesale repeal of the BSA’s policy against openly gay adult leaders. What the BSA leadership seems to have been most intent on is finding a way to snooker local scout leaders and parents into supporting a revision that is unworkable and unsustainable.

Indeed, the BSA leadership appears to have given more careful thought to the theatrics of its upcoming meeting than to the substance of its resolution. Minutes that I have obtained of a recent conference call of the BSA’s Membership Standards Policy Committee set forth an elaborate script for next week’s meeting, including:

As participants enter the ballroom, a small live band will be playing pop tunes. We are creating a light mood/atmosphere for the meeting. As the start of the meeting approaches (9:30 a.m.) we will instruct everyone to take their seats. We will have the lights go down and a single spot light will be on the stage to create a dramatic effect. We will have one of our volunteers start off singing God Bless America and then we’ll ask everyone else to join in after a few moments. As the song concludes, the lights will come up.

A couple of pieces worth reading:

1. In this New York Post op-ed, Scott Walter of the Capital Research Center explores “a flip side to the scandal” over the “IRS’s targeting of conservatives trying to start tax-exempt groups”: “the agency possibly going easy on tax-exemption applications by groups doing the administration’s political work.” From his opening paragraphs:

This is linked to another breaking scandal, Health and Human Services Secretary Kathleen Sebelius’ apparent fund-raising for two pet nonprofits. The Washington Post broke the news last week that Sebelius had asked health industry firms “to make large financial donations” to groups helping the administration sell ObamaCare.

The Post specifically mentioned Enroll America, a nonprofit run by Anne Filipic, who previously was White House deputy director for public engagement. Its managing director, Chris Wyant, led Obama’s 2012 “ground game” in Ohio.

Earlier press reports revealed the administration’s other nonprofit for promoting ObamaCare is Organizing for Action, which is simply the president’s re-election campaign morphed into precisely the kind of nonprofit entity that Tea Party activists hoped to set up when they were targeted by the IRS. (How close are the group’s ties to the president? Find out at its Web site: BarackObama.com.)

2. In the Wall Street Journal, James Bovard provides “A Brief History of IRS Political Targeting” going back to FDR, and he draws from that history the lesson that IRS audits “will remain irresistible political weapons.” All the more reason, of course, to identify, and inflict a high cost on, those who don’t resist the temptation.

2008—The California supreme court, by a vote of 4 to 3, invents a right to same-sex marriage under the state constitution. Chief justice Ronald M. George’s majority opinion offers the usual false assurances that he’s not just making it up and imposing his own policy preferences. Even more brazenly, George tries to defend his usurpation of the “people’s will” by arguing that the “provisions of the California Constitution itself constitute the ultimate expression of the people’s will.” In a sense, yes—when those provisions are faithfully and properly interpreted and applied. But not when judicial activists like George abuse them.

Six months later, California’s citizens vote to override the court’s ruling by approving Proposition 8, a measure that amends the state constitution to protect traditional marriage.

That is the question that Kermit Gosnell forces on our attention.  Two years ago I wrote about the Gosnell case here, at NRO, when he was indicted.  Today at Public Discourse I review what we have learned from the case as it was prosecuted to its successful conclusion, with three murder convictions and 21 late-term abortion convictions yesterday in Philadelphia.  A sample:

Gosnell, whose clinic was shut down by the Philadelphia authorities who charged him with murder, is the ne plus ultra of the abortion trade. Not because of the filth, the squalor, the jars of amputated keepsake baby feet, the employment of unlicensed incompetents, the promiscuous use of narcotics on unwitting patients, or the poisonous racism of a physician who preyed upon women and babies of his own race—although all of these are no surprise at all in America’s most unregulated branch of medicine.

No, Gosnell is the “slave-dealer” par excellence because, even if he had run the cleanest, brightest, most professional clinic in the country, he was simply following out the remorseless logic of the abortion regime installed forty years ago by the Supreme Court.

Women came to him for the very latest of late-term abortions, and he made sure their children were dead. Whether he accomplished their deaths in utero or ex utero—before or after their births—didn’t really matter to Gosnell. And, as we have heard from Planned Parenthood officials, from then-Illinois state senator Barack Obama, and from “pro-choice” politicians like Senator Barbara Boxer, it doesn’t matter to them, either.

Read the rest here.

1970—President Richard M. Nixon, in one of the misdeeds for which he most deserves infamy, appoints Harry A. Blackmun to the Supreme Court. Blackmun, a boyhood friend of Chief Justice Warren Burger, had served on the Eighth Circuit since 1959. Before that, he had been in-house counsel for the Mayo Clinic. His appreciation for the outstanding work done by the fine doctors at the Mayo Clinic is said to have led him to regret that he himself did not become a doctor. Those with a proper appreciation of Blackmun’s Supreme Court decisionmaking—including, but by no means limited to, his notorious opinion in Roe v. Wade (see This Day for January 22)—might fairly observe that the medical profession’s loss was the nation’s … loss.   

2009—Ramona Ripston, executive director of the ACLU Foundation of Southern California and (per its website) the individual “responsible for all phases of the organization’s programs, including litigation,” takes part in a confidential strategy meeting with counsel planning to file a federal lawsuit against Proposition 8. After counsel files the complaint in Perry v. Schwarzenegger, Ripston’s organization will file pre-trial and post-trial amicus briefs in support of plaintiffs, and Ripston will publicly “rejoice” over Judge Vaughn Walker’s August 2010 ruling against Proposition 8.

But when Ripston’s husband, arch-activist Stephen Reinhardt, is assigned to the Ninth Circuit panel charged with reviewing Walker’s ruling, Reinhardt somehow will decline to recuse himself from the case.

Within the space of three months, the top leadership of the Boy Scouts of America floated two dramatically different revisions of the BSA’s policy against youth members and adult leaders who are “open or avowed homosexuals.” In late January, the BSA announced that it was considering a policy change under which “there would no longer be any national policy regarding sexual orientation” and the matter would instead be left to each of the various organizations that sponsor troops “to determine how to address this issue.” In late April, the BSA proposed its resolution that would allow openly gay youth members while supposedly retaining the prohibition on adult leaders who are “open or avowed homosexuals.”

Different as these two proposals are, they share one fundamental feature: While purporting to allow (in the case of the first) or require (in the case of the second) troops to bar openly gay adult leaders, they threaten to fatally undercut the legal basis for maintaining that bar. (See my fuller discussion of this point on the first proposal here and on the second proposal here.) Indeed, they do so without offering any sign that they’ve even given the matter an iota of attention.

What this demonstrates is that the BSA’s top leaders aren’t serious about finding some middle ground. Instead, they’re trying to snooker and bamboozle local scout leaders and parents to embrace a proposal that isn’t sustainable and that will lead in short order to a wholesale abandonment of the existing policy against openly gay adult leaders. Whether or not one supports that abandonment, the dissembling way that the BSA’s top leaders are pursuing it is a shameful violation of their duty to be trustworthy.

Last March, my JCN colleague Carrie Severino wrote an excellent USA Today op-ed entitled “Gay marriage victory might backfire,” making the case that our country’s experience with Roe v. Wade should make gay marriage advocates wary of asking the U.S. Supreme Court to decide the matter once and for all.  As she explained:  

The case of Roe v. Wade is instructive, because it mirrors the current state of the same-sex marriage movement in many ways. By 1973 when the Roe decision was handed down, the political stars appeared to be aligned in favor of abortion advocates. Abortion enjoyed widespread support in academia and among opinion elites as well as in public opinion polls, and was making headway in state law. The year before the Supreme Court decision was handed down saw nearly 600,000 legal abortions performed.

Despite these trends, taking abortion away from the legislatures galvanized widespread opposition. From hundreds of proposed constitutional amendments and state laws, to a national movement that has slowly but steadily shifted cultural opinion, abortion has become an issue that permeates the political process, particularly respecting judicial nominations, and has morphed into a key divide between the major parties.

Interestingly, in a speech a the University of Chicago this past weekend, Justice Ginsburg signaled that she shares Carrie’s perspective, at least with respect to Roe v. Wade. Per the AP story:  

U.S. Supreme Court Justice Ruth Bader Ginsburg says she supports a woman’s right to choose to have an abortion, but feels her predecessors’ landmark Roe v. Wade ruling 40 years ago was too sweeping and gave abortion opponents a symbol to target.

Ginsburg, one of the most liberal members of the nation’s high court, spoke Saturday at the University of Chicago Law School. Ever since the decision, she said, momentum has been on abortion opponents’ side, fueling a state-by-state campaign that has placed more restrictions on abortion.

“That was my concern, that the court had given opponents of access to abortion a target to aim at relentlessly,” she told a crowd of students. “… My criticism of Roe is that it seemed to have stopped the momentum that was on the side of change.” . . .

Ginsburg told the students she prefers what she termed “judicial restraint” and argued that such an approach can be more effective than expansive, aggressive decisions.

“The court can put its stamp of approval on the side of change and let that change develop in the political process,” she said.

The logical import of Justice Ginsburg’s comments, of course, is that the Supreme Court should resist the temptation to establish a right to gay marriage from coast to coast, instead letting this issue play out in the states. Justice Kennedy made remarks in March that led some to believe he is of the same view, based on his “concerns that the high court,” rather than the democratic process, ”is increasingly the venue for deciding politically charged issues such as gay marriage, health care and immigration.”

No one can know for sure how Judge Ginsburg will vote on these cases, but her comments are certainly a good sign for those of us who are asking if the Supreme Court will “decide to detonate another dirty bomb, poisoning the culture wars for decades to come,” as Carrie put it.

Next week, the roughly 1,400 members of the Boy Scouts of America’s national council will vote on a resolution that would revise the BSA’s membership policy on homosexuality. The proposed resolution would eliminate the BSA’s prohibition of youth members who are “open or avowed homosexuals” but would supposedly retain its prohibition of adult leaders who are.

In my initial post on the resolution, I explained why I believed that it was ill-considered and unsustainable. Last week, in a document clumsily titled “Membership Resolution Points of Clarification,” the BSA tried to defend its resolution against the various criticisms that it has received.

In points 3 and 4 of my initial post, I explained that while the BSA’s proposed new policy would purport to leave in place its policy denying membership to adult leaders who are “open or avowed homosexuals,” it would in fact undermine the legal basis for maintaining that policy in states that prohibit discrimination on the basis of sexual orientation. In Boy Scouts of America v. Dale (2000), the Supreme Court ruled that the BSA has a constitutionally protected right under the First Amendment to its existing membership policy. That victory rested heavily on the BSA’s position that (as the Court summarized it) “homosexual conduct is inconsistent with the values it seeks to instill.” The resolution, however, is conspicuously silent on whether this remains the BSA’s position.

Further, because the proposed new policy would apparently allow youth members who are “open or avowed homosexuals” to occupy leadership roles in the troop, it is difficult to see on what basis the BSA could expect to justify barring adults who are “open or avowed homosexuals” from leadership roles. The Washington Post, in a house editorial that criticized the BSA resolution for retaining the adult ban, cited my post and expressly agreed with me that the line that the BSA would draw between adult leaders and youth leaders is incoherent.

So what does the BSA have to say in response? Essentially nothing.

For starters, the BSA doesn’t maintain that its proposed new policy would bar youth members who are “open or avowed homosexuals” from having leadership roles. In the absence of such a provision, troops at a minimum will be allowed to have youth leaders who are “open or avowed homosexuals.”

The BSA doesn’t mention Dale at all and doesn’t directly argue that it could sustain its proposed new policy against litigation challenges. The closest it gets to the subject is its statement that the resolution “rightly recognizes there is a difference between kids and adults.”

But is there a significant difference between a 17-year-and-11-month old youth leader and an 18-year-old (or older) adult leader—a difference so significant that the BSA could plausibly be thought to hold, and to be advancing, a position that “homosexual conduct is inconsistent with the values it seeks to instill” when it allows “open or avowed homosexuals” to be youth leaders but not adult leaders? The BSA’s failure to address this fundamental question is telling.

Someone who prefers the existing BSA policy over a wholesale repeal of that policy might be tempted to support the BSA’s resolution. But there is no reason to think that resolution would adopt a workable and sustainable approach. It instead would operate as the way-station to a wholesale repeal, the first step in a very quick two-step surrender. So anyone who favors the existing BSA policy over a wholesale repeal of that policy should vote against the resolution.

Addendum: Tomorrow at noon at the Heritage Foundation, I’ll be taking part in a panel discussion on the BSA resolution.

1993—In dissent in University of Miami v. Echarte, Florida chief justice Rosemary Barkett flouts U.S. Supreme Court precedent as she opines that a statutory cap on non-economic damages in medical malpractice cases violates the Equal Protection Clause of the federal Constitution. Nominated a few months later by President Clinton to the Eleventh Circuit, Barkett concedes at her confirmation hearing that she “should not have done that.” But, hey, activism happens—when, that is, reckless judges like Barkett are involved.

To make matters even worse: Barkett’s dissent adopts the position taken in an amicus brief submitted in the case by the Academy of Florida Trial Lawyers. While the case was pending and while Barkett was facing a retention election, this same group created an annual award named after her, the Rosemary Barkett Award. In November 1992, one week after her successful retention election, Barkett presented the first annual Rosemary Barkett Award at the group’s annual convention. So much for the fact and appearance of impartiality.

2005—Federal district judge Joseph F. Bataillon rules that the Nebraska constitutional provision defining marriage as “between a man and a woman” violates First Amendment associational rights, the Equal Protection Clause, and the Bill of Attainder Clause. One year later, a unanimous Eighth Circuit panel reverses all of these rulings.

2013—Happy Mother’s Day! No thanks to Ruth Bader Ginsburg, who in 1974 co-authored a report proposing that Congress abolish Mother’s Day and Father’s Day and replace them with an androgynous Parents’ Day. Observing Parents’ Day would, she explained, be “more consistent with a policy of minimizing traditional sex-based differences in parental roles.”

In that same report, the oh-so-“moderate” Ginsburg stated her strong sympathy for the proposition that there is a constitutional right to prostitution and a constitutional right to bigamy; criticized the Boy Scouts and the Girl Scouts for perpetuating stereotyped sex roles; and urged that prisons be co-ed rather than single sex. (See here for relevant excerpts from the report.)

AEI released an excellent paper this week by Tanya Marsh and Joseph Norman, “The Impact of Dodd-Frank on Community Banks,” detailing the damage the financial reform bill has inflicted on these important institutions. As the authors explain, the Consumer Financial Protection Bureau (currently the subject of a constitutional challenge I’ve written about) is imposing significant costs on relationship-based banking and threatening the survival of the banks that are vital to our “Main Street” economy. 

The study was released on the heels of a Washington Post story by Robert Kaiser detailing how Barney Frank convinced the influential Independent Community Bankers of America — the community bankers’ lobby — to stay on the sidelines during the fight over Dodd-Frank’s passage. The ICBA’s cooperation was secured in exchange for a reduction in FDIC assessments for smaller banks, and a Faustian bargain that did nothing to free those same banks from the CFPB’s oppressive regulatory regime.

The standardization resulting from Dodd-Frank comes at the expense of the relationship banking model, the preferred model of many community banks. According to James H. McKillop, III, in Congressional testimony for the Independent Community Bankers of America:

Community banks . . . serve rural, small town, and suburban customers and markets that are not comprehensively served by large banks. Our business is based on longstanding relationships in the communities in which we live. We make loans often passed over by the large banks because a community banker’s personal knowledge of the community and the borrower provides firsthand insight into the true credit quality of a loan, in stark contrast to the statistical models used by large banks located in other states and regions. These localized credit decisions, made one-by-one by thousands of community bankers, support small businesses, economic growth, and job creation.

The CFPB’s vast regulatory web also forces community banks to pour money into compliance and away from lending. In Florida, 96 percent of community banks and credit unions “expect to spend considerably more time and money on compliance with new federal regulations over the next three years,” while 64 percent expect to hire new compliance staff and reduce their lending. The State National Bank of Big Spring, Texas, a plaintiff in the Dodd-Frank lawsuit, suspended its entire residential-mortgage division for fear of CFPB liability. Twelve hundred rural US counties would have “severely limited banking access” without community bankers, who also serve other key sectors of our economy:

Community banks provide 48.1 percent of small business loans issued by US banks, 15.7 percent of residential mortgage lending, 43.8 percent of farmland lending, 42.8 percent of farm lending, and 34.7 percent of commercial real estate loans, and they held 20 percent of all retail deposits at US banks as of 2010.

Democrats sold the CFPB as a response to the last financial crisis, and consumers did need a watchdog for protection from predatory lending. However, Marsh and Norman persuasively explain that community banks had little or nothing to do with the major causes of the financial crisis, including subprime lending, securitization, and derivatives. Overall, “total residential mortgage defaults at community banks [made] up only 2 percent of all defaults between 2003 and 2010,” while “[c]ommunity banks participated in only 0.07 percent of residential mortgage securitization activities between 2003 and 2010.”

Nonetheless, the cost of complying with the new regulatory regime will probably drive many of those same community banks out of business, or at least lower the quality and quantity of the services they can offer the customers in their communities. Meanwhile, as I wrote back in February, large banks will continue to rely upon lawyers, lobbyists, and in-house regulatory-compliance divisions to bear their regulatory burden. Which means that one net result of Dodd-Frank will probably be to increase the market share of the megabanks that caused the financial crisis in the first place, at the expense of the kind of banks that were actually behaving responsibly.  

2006—Mississippi attorney Michael B. Wallace, nominated to the Fifth Circuit by President Bush, is victimized by the ABA. In a scandalous process marked by bias, a glaring conflict of interest, incompetence (see here and here), a stacked committee, violation of its own procedures, cheap gamesmanship, and ultimately, flat-out perjury, the ABA committee rates Wallace “not qualified.”  After Democrats regain control of the Senate in 2007, Wallace’s nomination is not resubmitted.

2011—In what Chief Judge Alex Kozinski’s dissent labels an “Article III putsch,” Ninth Circuit outlaw Stephen Reinhardt issues a 77-page majority opinion (in Veterans for Common Sense v. Shinseki) that would place the Department of Veterans Affairs’ mental-health-treatment and disability-compensation programs under the direct supervision of a federal district judge. One year later, an en banc panel of the Ninth Circuit will reverse Reinhardt by a 10-1 vote, with even all five Clinton appointees on the panel voting against Reinhardt.

Information released yesterday by the Census Bureau about voter turnout in 2012 further undermines the constitutionality of the distinctions made by Section 5 of the Voting Rights Act between the jurisdictions it covers and those it does not. This discussion here in the Atlantic Wire concludes that “those states [now covered by Section 5] didn’t see lower-than-average black turnout. In fact, averaging both turnout and deviance from the norm in those Voting Rights Act (VRA) states, we see that they outperformed non-VRA ones.” Earlier, they note, “Black turnout was highest in Wisconsin, Mississippi, and North Carolina. The lowest percentages — of eligible black voters, not of voters overall — were in Arizona, Washington, and Arkansas.” Chief Justice Roberts had noted Mississippi’s high black turnout rate at the oral argument in Shelby County v. Holder, where the constitutionality of Section 5 has been challenged.

2006—When left-wing activist and divorce specialist Marna Tucker is somehow selected as the D.C. Circuit member of the ABA committee that rates federal judicial nominees, Senate Democrats engineer the occasion for Tucker to conduct a (supposedly) supplemental review of White House lawyer Brett M. Kavanaugh, who had previously received an overall “well qualified” rating. Tucker instead launches a scorched-earth investigation that produces a jumble of biased and incoherent allegations, and the ABA committee reduces Kavanaugh’s overall rating to “qualified.” Amidst the ensuing Democratic smears, Kavanaugh ends up being confirmed to the D.C. Circuit by a vote of 57-36. (See here for a fuller account.)   

Sunday’s NYT featured a lengthy story by Adam Liptak arguing that the Supreme Court has become particularly friendly to business interests.  I analyze the study upon which Liptak’s article is based here, and Michael Greve adds his thoughts here.

In cases across the country, various individuals and the family-owned corporations they operate are invoking their religious-liberty rights not to comply with the Obama administration’s HHS mandate on contraceptives (including abortifacients). A leading argument that the Obama administration is making is that “for-profit, secular companies,” unlike “non-profit, religious organizations,” are categorically incapable of engaging in an exercise of religion within the meaning of the federal Religious Freedom Restoration Act and thus have no rights under RFRA. And the Obama administration uses the adjectives “for-profit” and “secular” redundantly: It maintains that every “for-profit” corporation is ipso facto “secular.” (I’m drawing here from DOJ’s Tenth Circuit brief in the Hobby Lobby case, pp. 11-12.)

The Obama administration’s argument can’t withstand scrutiny. For starters, RFRA itself makes no distinction between “for-profit, secular companies” and “non-profit, religious organizations.” On the contrary, its protections extend generally to “persons”—a term that under federal law includes corporations (“unless the context indicates otherwise”). Further, it ought to be obvious that for-profit companies can and do engage in, or abstain from, activity in a way that amounts to an exercise of religion. Take, for example, an incorporated Jewish deli that closes on the Sabbath and that serves only kosher food. (For yet further refutations of the argument, see this post of mine from mid-March.)

It turns out that, in a case that exposes the folly of its position, the Obama administration is afraid to defend its categorical proposition that a for-profit corporation has no religious-liberty rights under RFRA. That surely is why it moved to voluntarily dismiss its appeal of the preliminary injunction that a federal district court granted to Tyndale House Publishers, a for-profit corporation that publishes Bibles and other religious books. The D.C. Circuit granted its motion to dismiss last Friday.

In one of my first essays for NRO back in 2005 (“Are You an Originalist?”), I selected the Constitution’s “natural born Citizen” criterion for eligibility to be president—a provision that then seemed at the time to be beyond the distorting effects of political bias—to illustrate that everyone intuitively recognizes the common-sense principle at the heart of the interpretive methodology of originalism: namely, that the meaning of a constitutional provision is to be determined in accordance with the meaning that it bore at the time that it was adopted. The public debate in 2008 over whether John McCain, having been born in 1936 in the Panama Canal Zone to parents who were American citizens, was a “natural born Citizen” ratified my point, as virtually all commentators purported to undertake an originalist inquiry.

I hadn’t seen any reason to comment on the left-wing “birther” attacks on Senator Ted Cruz’s eligibility to be president.  Cruz was born in Canada in 1970 to a mother who was then an American citizen. Under the laws then in place, he was an American citizen by virtue of his birth.

As this Congressional Research Service report sums it up (p. 25; see also pp. 16-21), the “overwhelming evidence of historical intent, general understandings [in 18th-century America], and common law principles underlying American jurisprudence thus indicate[s] that the most reasonable interpretation of ‘natural born’ citizens would include those who are considered U.S. citizens ‘at birth’ or ‘by birth,’ … under existing federal statutory law incorporating long-standing concepts of jus sanguinis, the law of descent.” In other words, there is strong originalist material to support the semantic signal that “natural born Citizen” identifies someone who is a citizen by virtue of the circumstances of his birth—as distinguished from someone who is naturalized later in life as a citizen. (In McCain’s case, the dispute turned on whether he was indeed an American citizen by virtue of his birth—or was instead naturalized a citizen under a law enacted when he was eleven months old. For more, see law professor Gabriel Chin’s lengthy article making the case against McCain.)

To my surprise, the New Republic’s Noam Scheiber tries to argue that Cruz’s embrace of constitutional originalism somehow means that Cruz can’t determine that he is a “natural born Citizen.” But the only evidence that Scheiber offers for this position is the assertion (which Scheiber mischaracterizes as a concession) by a non-originalist law professor in an MSNBC interview that the proposition that a person is a “natural born Citizen” if he is a citizen by virtue of his birth “isn’t really clear cut if you limit yourself to the actual wording of the Constitution” (that’s Scheiber’s paraphrase) but instead depends on “how our understandings have evolved over time.” Scheiber both overlooks the powerful originalist evidence in support of Cruz’s status as a “natural born Citizen” and misunderstands how originalist methodology operates. (In public-meaning originalism, you don’t “limit yourself to the actual wording of the Constitution,” and you don’t find yourself lost simply because the Constitution “never defines what ‘natural born’ means.” You instead look to the public meaning of the term at the time it was adopted.)

My point here isn’t to contend that the originalist evidence points entirely in one direction. As law professor Michael Ramsey observes in a post that I’ve run across while finalizing this post (a post that also takes issue with Scheiber), there are originalist scholars who don’t “find the argument entirely conclusive.” But Scheiber’s piece is a cheap whack at Cruz as well as a cheap whack at originalism.

1993—In Baehr v. Lewin, the Hawaii Supreme Court rules that traditional marriage is presumptively unconstitutional and orders the state to demonstrate a “compelling state interest” for denying marriage licenses to same-sex couples. In 1998, the people of Hawaii respond by amending the state constitution to confirm that the legislature has the power to reserve marriage to opposite-sex couples, and the legislature amends the constitution to define marriage as being between one man and one woman.

2003—In the fifth of seven unsuccessful cloture votes on President Bush’s 2001 nomination of the superbly qualified Miguel Estrada to the D.C. Circuit, only two of the 49 Senate Democrats vote for cloture.

1984—When is an express signed waiver of Miranda rights not a waiver? When you try to conceal your identity by signing a false name. So rules federal district judge H. Lee Sarokin (in an unpublished opinion in United States v. Rodriguez). Rodriguez had been arrested on theft-related charges and was advised of his Miranda rights and informed that signing the waiver form would waive those rights. He signed the form, but, intent on concealing his identity, signed someone else’s name. Sarokin rules that “it does not strain logic to find the use of a name other than one’s own to be wholly inconsistent with a voluntary waiver of rights: defendant may well have believed that by using a false name he was not committing himself to anything.”

In a remarkable display of chutzpah, Sarokin immediately follows this assertion with a “But see” citation to specific and contrary Third Circuit authority that he himself describes as standing for the proposition that “contention that signature was not one’s own is not relevant to the issue of the voluntariness of the confession.” A more blatant defiance of controlling authority of a higher court is difficult to imagine.

2009—On the heels of Justice David Souter’s announcement of his decision to retire, Harvard law professor Laurence H. Tribe writes a letter to his protégé, Barack Obama, offering his nuggets of wisdom on how President Obama should seize the “opportunity to lay the groundwork for a series of appointments that will gradually move the Court in a pragmatically progressive direction.” Among the nuggets: Don’t nominate Sonia Sotomayor:

“Bluntly put, she’s not nearly as smart as she seems to think she is, and her reputation for being something of a bully could well make her liberal impulses backfire and simply add to the fire power of the Roberts/Alito/Scalia/Thomas wing of the Court on issues like those involved in the voting rights case argued last week and the Title VII case of the New Haven firefighters argued earlier, issues on which Kennedy will probably vote with Roberts despite Souter’s influence but on which I don’t regard Kennedy as a lost cause for the decade or so that he is likely to remain on the Court.”

Instead, Tribe recommends that Obama nominate Elena Kagan. As Tribe explains it, the techniques that Kagan deployed as Harvard law school dean “for gently but firmly persuading a bunch of prima donnas to see things her way in case after case” would give her much more of “a purchase on Tony Kennedy’s mind” than Justice Breyer or Justice Ginsburg have.

Although my name hasn’t yet been added to the online list of speakers, I am very pleased to pass along that I will be taking part in National Review’s summer cruise of the fjords of Norway (the ancestral land of a This Day in Liberal Judicial Activism superstar, former chief justice Earl Warren). The cruise runs from August 1 to 8.

If the cruise interests you and the timing works for you, I’d definitely encourage you to sign up. From my three previous NR cruises, I can attest that the many excellent programs and parties organized by National Review promote a real camaraderie among the NR speakers and cruisers, and there are many other activities available on the ship and at the various ports of call. If you’ve never been on a cruise before, you’ll find the ship itself (part of the premium Holland America line) to be a marvel, spacious and elegant and comfortable.