Bench Memos

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Oral Arguments in Zivotofsky v. Kerry: ‘Core Powers’ Analysis And Text


I just finished reading the transcript from this morning’s arguments in Zivotofsky v. Kerry, a case about whether Congress has the power to pass a law directing the State Department to record the birthplace of an American citizen born in Jerusalem as born in “Israel” on various forms, including a passport. President George W. Bush signed the law in 2002, but also issued a signing statement questioning the constitutionality of the law. President Obama’s administration has followed suit, refusing to enforce that provision of the law. This case seems to me to have compelling arguments on both sides, but the terms of the debate were particularly interesting, as they featured debate about the reasoning that comes into play in executive-power cases.

Over and over, Solicitor General Verrilli hammered the consequences of the birthplace requirement to buttress his argument that the passport operated as “diplomatic communications” that impinged upon a core “recognition power,” that is, the power to recognize sovereigns (for which the executive has asserted exclusive power for quite a while). Because the executive also has the power to “give effect” to its recognition, the administration argued, any congressional statute that might detract from this effect (such as by causing problems for diplomatic relations) is unconstitutional.

But Justice Scalia asked Verrilli to explain why the expected consequences (pp. 27–28) should matter to the legal analysis:

JUSTICE SCALIA:  If it ­­– if it is within Congress’s ­­– if it is within Congress’s power, what difference does it make whether it antagonizes foreign countries?

GENERAL VERRILLI:  Well, there are certain things that are within Congress’s power that would antagonize foreign countries that wouldn’t raise a separation of powers problem, of course, like a trade embargo or a travel ban.  But ­­–

JUSTICE SCALIA:  And this may be one of them.  So ­­–

GENERAL VERRILLI:  This is not one of them.

[JUSTICE] SCALIA:  –­­ the mere fact that it upsets foreign relations doesn’t prove a thing.

GENERAL VERRILLI:  No.  The critical point, Your Honor, is that what this statute does that those other statutes don’t do is it requires the Executive Branch, the President himself and the Executive Branch itself, to communicate a message that contradicts the official recognition position of the United States, undermining the President’s credibility and preventing the President from being able to speak with one voice credibly.

Justice Kennedy then chimed in, again asking (as he had earlier in the argument) why the State Department couldn’t simply add its own disclaimer about whether the birthplace identification was legal recognition:

JUSTICE KENNEDY:  But why couldn’t you have a disclaimer of the kind that I’ve explained to the Petitioners’ counsel.  She said that would be perfectly lawful, for you to say it’s not the position of the State Department, this is not an indication that Israel has jurisdiction over Jerusalem.


JUSTICE KENNEDY:  Why wouldn’t that solve the problem?

GENERAL VERRILLI:  It doesn’t solve the problem because the issuance of the disclaimer is a credibility hit.  It undermines the credibility of the President because what is –­­ think about what it’s actually saying.  What it’s actually saying in this context is yes, we’re issuing thousands of passports that identify persons born in Jerusalem as being born in Israel; yes, the Congress of the United States required that; but pay no attention to it really; it doesn’t have any bearing on recognition.

Justices Scalia and Kennedy were seemingly making a formalist point that characterizing a birthplace as being in a particular country is not formal legal recognition of its being there. This argument focuses on the nature of the recognition power, rather than its consequences. Verrilli answered that issuing such a disclaimer would be embarrassing, making a consequentialist argument: The executive’s power is delimited by looking to the effects of limiting it, in this case, a “credibility hit.” But for that argument to work, the Constitution would have to have some guarantee that different branches of the U.S. government would not be sending conflicting messages, a view that Verrilli had just admitted would not be accurate. In the words of the prison warden from Cool Hand Luke, what we’ve got here is a failure to communicate.

The disconnect between Justices Scalia and Kennedy’s question and Verrilli’s answer arises, I suspect, from how some of the cases explicitly disavow precise boundaries for executive power. I speak primarily of Justice Jackson’s concurrence in The Steel Seizure Cases (1952), a case reviewing Harry Truman’s attempt to nationalize the domestic steel industry during a strike under a claim of executive power. Justice Jackson began his argument by rejecting text or historical sources as helpful for thinking about executive power:

A judge, like an executive adviser, may be surprised at the poverty of really useful and unambiguous authority applicable to concrete problems of executive power as they actually present themselves. Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh. A century and a half of partisan debate and scholarly speculation yields no net result but only supplies more or less apt quotations from respected sources on each side of any question. They largely cancel each other. And court decisions are indecisive because of the judicial practice of dealing with the largest questions in the most narrow way.

The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress. We may well begin by a somewhat over-simplified grouping of practical situations in which a President may doubt, or others may challenge, his powers, and by distinguishing roughly the legal consequences of this factor of relativity.

Because there are no judicially-ascertainable standards, he argues, the vacuum of specificity implies a continuum of powers that fall into these three general categories:

1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.

2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.

3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.

Jackson’s concurrence seeks to treat the Constitution as a conceptual framework that grants maximum flexibility for changing conditions, rather than as a legal instrument for establishing and regulating powers. Verrilli’s argument, which seeks to draw the constitutional line around a perceived need of international diplomacy, is premised on the same pragmatic approach. This pragmatic approach, I suspect, is why the four most liberal members of the Court appeared to be most sympathetic to the administration today.

International diplomacy is clearly important to the prosperity and security of the United States. It’s also correct to say that the president has much more discretion over international affairs than domestic affairs (as affirmed in United States v. Curtiss-Wright Export Corp. (1936)), which is why only Justices Scalia and Kennedy seemed resolutely opposed to the administration’s position. But the whole point of a written Constitution is to take away flexibility, not to grant it wholesale. Thus, it seems exactly backwards to use the lack of restraints on external affairs as an argument to diminish the power of another branch — i.e., Congress — over internal governmental functions. Either way, the Court’s opinion will likely constitute an important contribution to jurisprudence on the relationship between Article I and Article II.

A Good Disparate Impact Ruling


Today Judge Richard J. Leon of the U.S. District Court for the District of Columbia struck down the Obama administration’s “disparate impact” regulations for the Fair Housing Act, ruling that they are inconsistent with that statute. The issue whether disparate impact causes of action may be brought under the Fair Housing Act is also before the Supreme Court this term. And so, as Judge Leon concludes, “Fortunately for us all . . . the Supreme Court is now perfectly positioned . . . to finally address this issue in the not-too-distant future.” 


Upcoming SCOTUS Highlights, November 3--5, 2014


Today the Supreme Court began its first of two argument weeks in November. It’s going to be an interesting week.

The first Monday argument was Zivotofsky v. Kerry, which will resolve the constitutionality of a federal statute that requires the Secretary of State to identify an American citizen’s birthplace in Jerusalem as “Israel.” The Administration argued that the statute “impermissibly infringes on the President’s exercise of the recognition power reposing exclusively in him.” The second argument, Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund, addresses a circuit split on the issue of whether a suit under 15 U.S.C. § 77k requires that a false statement only be objectively wrong, or whether the speaker believe it to be wrong.

Tuesday’s highlight is Department of Homeland Security v. MacLean (whether statutory protections for whistleblowers extend to an employee who intentionally discloses Sensitive Security Information) followed by Jesinoski v. Countrywide Home Loans (whether a rescission deadline for the Truth in Lending Act is satisfied by notice to the creditor or the filing of a lawsuit).

On Wednesday, the Supreme Court turns its attention to not-so-rampant criminality. The first argument will be in Yates v. United States, which involves a literal red herring (actually, several). The issue is whether the anti-shredding provision of the Sarbanes-Oxley Act of 2002 (passed in the wake of the Enron scandals) which forbids destruction of a “tangible object” with intent to affect a government investigation. This is a statutory interpretation case and the defendant is raising issues of constitutional avoidance and lenity in addition to the principal arguments. As Richard Re points out, there may be a reprise of some of the considerations raised earlier this year by the majority opinion in Bond v. United States. You can also find Orin Kerr’s preview of the arguments here.

Immediately following Yates, the Court will hear argument in Johnson v. United States, about whether mere possession of a short-barreled shotgun qualifies for sentencing enhancements as a “violent felony” under the Armed Career Criminal Act. In this case, the defendant had previously been convicted for possession of a short-barreled shotgun in violation of Minnesota state law (a crime that most states do not recognize). This offense was one of three priors that increased his statutory sentencing range from a maximum of 10 years in prison to a mandatory minimum of 15 years and maximum of life imprisonment.

Stay tuned for more as the week goes on!

Georgetown Event


On Wednesday, Clark Neily (of the Institute for Justice) and I will take part in a discussion/debate of his book Terms of Engagement at Georgetown law school. (I critiqued Neily’s book a year ago in a series of posts: Parts 12345, 6.)

The event, sponsored by the Georgetown Center for the Constitution, runs from noon to 1 p.m. and includes lunch. More info here.

This Day in Liberal Judicial Activism—November 2


2004—In a civil-forfeiture proceeding (titled United States v. $242,484.00), Judge Rosemary Barkett dissents from the en banc Eleventh Circuit’s ruling that the government had established probable cause to believe that $242,484 in cash seized by DEA agents from airline passenger Deborah Stanford was connected to illegal drug activity. The 10-member majority rests its conclusion on the combined force of facts that include:

(1) Stanford was carrying 18,362 bills worth nearly a quarter of a million dollars and weighing some 40 pounds. Legitimate businesses generally find better, safer means of transporting large quantities of cash than stuffing it in a backpack. But other means would have generated a currency-transaction report.

(2) The bills were bundled in rubber bands in various denominations in a manner associated with drug organizations, and they were wrapped in a cellophane-type material known to be used by drug dealers to prevent discovery by drug-sniffing dogs.

(3) Stanford was traveling between New York and Miami, a known flight corridor for drug proceeds.

(4) As drug couriers often do, Stanford purchased her tickets with cash and changed her return date twice.

(5) Stanford insisted that she was unable to identify the people who gave her the cash, and she claimed not to know where she had met them and where she had stayed in New York.

(6) Stanford told conflicting stories about why she had traveled to New York, and she had no documentation to support her stories or the transfer of cash.

(7) A dog trained to detect narcotics identified the smell of narcotics from the cash in her backpack (after a hole had been poked in the cellophane wrapping).

Purporting to apply a “common sense view to the realities of normal life,” Barkett opines that these circumstances “are insufficient to find that the seized money was tied in a substantial way to an illegal drug transaction.” Alas, Barkett merely provides further compelling evidence that she has little sense, common or otherwise. 


Other Studies of the Montana Supreme Court


As Carrie Severino mentioned on Tuesday, the Judicial Crisis Network recently released a white paper about the Montana Supreme Court’s defiance of Supreme Court precedent on particular issues of federal law, such as free speech, property rights, and arbitration. It’s an excellent paper and I recommend it.

If you’re interested in knowing more about the Montana Supreme Court, here are a few other articles.

You should definitely read a 2012 study by Robert G. Natelson, a Senior Fellow at the Montana Policy Institute. Natelson’s paper, entitled The Montana Supreme Court vs. The Rule of Law. Natelson’s study, which is cited in the JCN paper, is a broader critique of the Montana Supreme Court’s jurisprudence and activism, with a focus on the problems that the court’s practices create for the rule of law. Such problems are especially problematic, according to Natelson, because the Montana Supreme Court is unbelievably powerful within Montana’s legal community (footnotes omitted):

One reason is that there are no intermediate courts of appeal in Montana. The high court decides many cases that in other jurisdictions would be resolved at the intermediate level. In addition, the Montana Supreme Court has very broad authority over the state’s attorneys. Its agencies license and discipline all lawyers. In 1974 it created the State Bar of Montana, and it requires all lawyers to be members.

Montana legal writers rarely challenge the court in any fundamental way. Writers on law are nearly all attorneys and/or law professors, and Montana attorneys are subject to court discipline. Montana law professors all work for a single institution, The University of Montana School of Law. That school’s relationship with the court is a cozy one: The court benefits the law school by requiring applicants for a Montana law license to have graduated from a law school accredited by the American Bar Association, which fortifies UM’s monopoly position. Nearly all UM law faculty members are members of the State Bar, and therefore subject to the discipline imposed by the Montana Supreme Court; most faculty attend at least some State Bar meetings. The school “courts” the justices by regularly inviting present and former justices to speak and teach. The school hosts Montana Supreme Court arguments at least annually, and it honors the justices at an annual dinner.

The three principal magazines of legal commentary within the state all are associated indirectly with the court. The Montana Lawyer is published by the State Bar. The Montana Law Review and the Public Land Law Review are both published by the UM law school, and the Montana Law Review traditionally receives funds from the State Bar. Thus, the Montana Supreme Court is rarely subject to the kind of fundamental criticism endured by other governmental institutions.

Adding to the strength of the court is the fact that Montana’s legislators, who serve only part time and lack a strong policy support staff, usually are in a weak position from which to challenge the justices. As is discussed below, the court regularly has invalidated legal efforts to curb agencies of state government, including itself.

For all these reasons, the court’s jurisprudence has an out-sized effect on Montana public affairs.

Natelson’s paper is well worth reading in its entirety.

If you are more accustomed to the staid prose of law review articles, two other articles stand out. First, there’s Professor Scott J. Burnham’s article about the arbitration conflict entitled The War Against Arbitration In Montana.

Second, there’s the analysis by Professor Jeffrey T. Renz of the University of Montana School of Law about stare decisis and Montana Supreme Court decisions 1991-2000. He concludes:

Between 1991 and 2000, the Montana Supreme Court overruled cases at an unprecedented rate. No other state court took a similar approach. In no other decade was the Montana Supreme Court as active.

Many may disagree with my categorization of these cases. It is perfectly arguable that some decisions I find justifiable are not, and that some decisions I criticize are justifiable. Any number of decisions could fall into more than one category.

Nevertheless, the pattern illustrates something. Moving a case here or changing the category of one or two there does not alter the picture. The court was active and was often irrationally active. If we set aside a tendency to act in a civil law tradition, the court’s activity can be explained only by a lack of adherence to principle when overruling its precedent. By remembering and applying the values of stare decisis, the court may return predictability to Montana’s jurisprudence.

Federalist Society’s National Convention


The Federalist Society’s annual national lawyers convention—always a great event—will take place in D.C. from Thursday, November 13 to Saturday, November 15. The convention opens with an address by Justice Scalia, and the dinner features a keynote address by Justice Alito. The full schedule includes lots of other federal judges, Senators Orrin Hatch and Mike Lee, and plenty of academics from all points on the ideological spectrum. Plus, lawyers can get lots of CLE credit. So sign up now. 

This Day in Liberal Judicial Activism—October 31


1972—By a vote of 5 to 4, the en banc D.C. Circuit, in an opinion by Judge J. Skelly Wright in United States v. Robinson, rules that a police officer violated the Fourth Amendment when, in the course of searching a person whom he had lawfully arrested, he opened up a crumpled cigarette package—which turned out to contain heroin—that he found in the person’s pocket. The D.C. Circuit overturns the resulting conviction for drug offenses.

In dissent, Judge Malcolm Wilkey faults Wright for ignoring “long-established doctrine” and for what Wilkey calls Wright’s “usual flat error regarding the established facts.” On review, the Supreme Court rules 6 to 3 (with Justices Douglas, Brennan, and Marshall in dissent) that the search and seizure “were permissible under established Fourth Amendment law.”

Justice Brennan, “Undocumented Children,” and “Illegal Aliens”


In her latest online column for the New York Times, Linda Greenhouse recounts the “brief, shining moment 32 years ago when the conservative Burger court ruled” in Plyler v. Doe that “states can’t exclude undocumented children from the free public education provided to all other children.”

Little needs to be said about Greenhouse’s legal basis—or, rather, lack thereof—for celebrating the constitutionally unsound ruling, as she seems to think (in approvingly summarizing Justice Powell’s position) that the Supreme Court has a roving commission to “interven[e] to save the country from a policy demonstrably destructive of the social fabric.”  I’ll just note briefly that Greenhouse’s attribution of the ruling to the “conservative Burger court” is a distortion—not only because the Burger Court wasn’t particularly conservative but also because the four justices on the Court with the strongest claim to the conservative label (Burger, White, Rehnquist, and O’Connor) were all in dissent in Plyler. And I’ll pass over her strained link between Plyler​ and the Courts recent order on Texass voter ID law.

I’d actually like to address an assertion that Greenhouse makes only parenthetically: that Justice Brennan “was a man ahead of his time in his use of ‘undocumented’” in Plyler. Greenhouse is correct that Brennan adopted that obtuse euphemism. (In ordinary English, one might suppose that an “undocumented child” is someone who doesn’t have documents showing that he is a child.) But her readers might readily infer that Brennan objected to using terms like “illegal alien.” Any such inference would be faulty. Here, for example, is one unremarkable paragraph from his opinion:

First, appellants appear to suggest that the State may seek to protect itself from an influx of illegal immigrants. While a State might have an interest in mitigating the potentially harsh economic effects of sudden shifts in population, § 21.031 hardly offers an effective method of dealing with an urgent demographic or economic problem. There is no evidence in the record suggesting that illegal entrants impose any significant burden on the State’s economy. To the contrary, the available evidence suggests that illegal aliens underutilize public services, while contributing their labor to the local economy and tax money to the state fisc. The dominant incentive for illegal entry into the State of Texas is the availability of employment; few if any illegal immigrants come to this country, or presumably to the State of Texas, in order to avail themselves of a free education. Thus, even making the doubtful assumption that the net impact of illegal aliens on the economy of the State is negative, we think it clear that “[c]harging tuition to undocumented children constitutes a ludicrously ineffectual attempt to stem the tide of illegal immigration,” at least when compared with the alternative of prohibiting the employment of illegal aliens.

Throughout Plyler, Brennan uses the terms “illegal aliens,” “illegal migrants,” and “illegal immigrants” roughly as often as he uses “undocumented children” and its variants. Indeed, he may well use the latter phrase when referring to children because the alternative (“illegal alien children”) is rather ungainly.

In short, Brennan’s opinion in Plyler provides no support for anyone who wants to stigmatize usage of the phrase “illegal alien.” 

This Day in Liberal Judicial Activism—October 30


2006—A South Dakota law enacted in 2005 sets forth informed-consent provisions for abortion, including that the woman undergoing abortion be informed that “the abortion will terminate the life of a whole, separate, unique living human being.” The law defines “human being” as an “individual living member of the species Homo sapiens.”

In Planned Parenthood Minnesota v. Rounds, a divided panel of the Eighth Circuit affirms an injunction preventing the entire 2005 law from going into effect. In her majority opinion, Judge Diana Murphy treats as a factual finding the district court’s determination that the statement that an abortion “will terminate the life of a whole, separate, unique living human being” is a value judgment, rather than a medical fact, and she relies on a declaration submitted by one of the plaintiffs to provide evidentiary support for that supposed factual finding. The statements, she concludes, “could be found to violate both the First Amendment rights of physicians and the due process rights of women seeking abortion.” In dissent, Judge Raymond Gruender points out that the statement is “an unremarkable tautology”—“a restatement of the definition of ‘abortion’”—and is “truthful, non-misleading, and non-ideological on its face.”

In June 2008, the Eighth Circuit, acting en banc, reverses the panel decision by a 7-4 vote, with Judge Gruender penning the majority opinion and Judge Murphy the dissent. 

City of Houston Withdraws Subpoenas Entirely


I’m pleased to pass along word from the Alliance Defending Freedom, counsel for five Houston pastors, that Houston mayor Annise Parker has—finally—entirely withdrawn the harassing subpoenas that the City unjustifiably inflicted on the pastors.

I’ll repeat what I said in my first post on this matter: The law firm of Susman Godfrey, which is representing the City “pro bono” in the litigation, deserves to share in the ample blame for this fiasco. In particular, Geoffrey L. Harrison, Alex Kaplan, and Kristen Schlemmer of that law firm seem not to have given a moment of careful thought to the First Amendment implications in this case of the sort of bullying discovery that they and other lawyers routinely engage in. 

More on Disenfranchisement


Liberals are already unhappy that conservatives want to disenfranchise some voters for little things like being non-citizens.  What will they say when they learn that George Leef is in favor of some people voting less-than-zero times?

Double Standards on Judicial Accountability?


Several Arizona judges who are facing retention elections this year were given negative performance ratings by the state’s Judicial Performance Commission (JPC), a state agency that is designed to collect and issue performance reviews of sitting judges.

You may recall that Arizona is a “Missouri Plan” state, which means that it allows lawyers who appear before state judges an outsized influence over which candidates will be nominated for office. Arizona’s JPC, which is responsible for rating judges after they are on the bench, likewise gives lawyers a disproportionate influence over the ratings, with attorneys constituting 25 percent of the commission’s members.

As it turns out, the JPC decided to issue negative reviews of several incumbent judges this year. Seizing on the opportunity, former Arizona-bar president Mark Harrison (who also just happens to be the chairman of Justice At Stake, a George Soros-funded group that favors such lawyer-dominated commissions), was quoted as saying (although not in his capacity as JAS’s chairman):

Even if a judge is retained in the face of negative votes, that judge is on notice that he or she better shape up and address the problems that have been identified in the process.

I haven’t been following Arizona’s judicial elections closely, so I don’t know whether the commission’s criticisms have any merit. But as I’ve noted before, the left’s double standard on retention elections is fascinating. On the one hand, it’s okay for the chairman of the board for a trial-lawyer-connected special-interest group to say that judges who receive a negative review should “shape up” or face voter accountability. At the same time, it’s somehow a dire “threat to judicial independence” when citizen groups try to advocate accountability for themselves.

New White Paper on the Montana Supreme Court’s Activism


I am pleased to announce that today my organization, the Judicial Crisis Network, released a white paper by three distinguished members of the conservative movement about the Montana supreme court and its activism in defiance of U.S. Supreme Court precedent. The authors of the white paper, William S. Consovoy, Michael E. Toner, and Samuel B. Gedge, have provided some fantastic research about that court’s history of recalcitrance toward federal statutes and Supreme Court case law.

Here’s the introduction:

In recent decades, some of the highest profile refusals to follow the U.S. Supreme Court’s decisions have come out of the Montana Supreme Court. In the most colorful instance, the U.S. Supreme Court had to grant certiorari twice to prevent the Montana Supreme Court from enforcing a federally preempted state law aimed at arbitration clauses. The Montana court embarked on a similar course of disobedience following the Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission. Less than two years after Citizens United invalidated government bans on corporate political speech, the Montana Supreme Court took up the same issue and reached the opposite result. And, in 2010, the Montana Supreme Court blessed the state’s retroactive claim of ownership over hundreds of miles of Montana riverbeds, again applying an analysis that ran directly counter to U.S. Supreme Court precedent.

* * *

The most obvious answer to state-court indifference to the U.S. Supreme Court’s authority is to vote the offending jurists—in this case the elected judges of the Montana Supreme Court—out of office. Here too, however, Montana’s experience suggests that ballot-box accountability can face serious obstacles. In 2011, legislators presented a referendum to the Montana voters that would have refined state judicial elections. As one proponent put it, the changes would “allow the people of the state of Montana to know their candidate better and make a better decision.” Montanans never got a chance to consider the measure, though. In an extraordinary (and dubious) exercise of power, the sitting justices of the Montana Supreme Court preemptively struck the referendum from the ballot. In other words, the Montana Supreme Court has not only abandoned its solemn obligation to adhere to supreme federal law, it has resisted the effort by Montana’s political branches to address the problem.

Read the whole thing here.

On Chai Feldblum’s Memory, and Her Considered Views


Maggie Gallagher, over at The Corner, responds to Chai Feldblum’s claim that she was misquoted in a 2006 Weekly Standard article, in which Maggie quoted Feldblum as saying that “when push comes to shove, when religious liberty and sexual liberty conflict, she admits, ‘I’m having a hard time coming up with any case in which religious liberty should win.’” Maggie supplies the full context, and though she does not have a recording, she is confident that she got it right at the time.

I can’t think why Feldblum should now want to disavow Maggie’s report of what she said long ago. It’s not like it’s inconsistent with her fully considered and published views of the matter. In the Becket Fund conference where Maggie evidently first discovered Feldblum’s views, she gave a paper that was later published in a book titled Same-Sex Marriage and Religious Liberty: Emerging Conflicts. Feldblum’s essay, “Moral Conflict and Conflicting Liberties,” squarely came down on the side of never resolving constitutional or legal claims of religious liberty in favor of those claiming it, if on the other side was a claim of gays and lesbians not to be discriminated against, with respect to marriage or anything else. Indeed, she made the move of reducing First Amendment religious freedom claims to mere “belief liberty interests” under the due process clause, which makes them much easier to defeat.

Feldblum went on to explicitly equate a refusal to acquiesce in the redefinition of marriage with racial bigotry:

Just as we do not tolerate private racial beliefs that adversely affect African-Americans in the commercial arena, even if such beliefs are based on religious views, we should similarly not tolerate private beliefs about sexual orientation and gender identity that adversely affect the ability of LGBT people to live in the world.

She then went on to say that there might be “limited situations in which a legislature [her emphasis -- i.e., not a court on constitutional grounds] might legitimately choose to protect the belief liberty of individuals or institutions over the identity liberty of LGBT people,” and she said that there might be two such situations. The first was when an explicitly religious organization runs operations like “schools, day care centers, summer camps, and tours,” its purpose is to “inculcate a set of beliefs” that are at odds with approval of homosexuality, and it “seek[s] to enroll only individuals who wish to be inculcated with such beliefs. The second situation, about which Feldblum said she was “more hesitant,” was when “religious institutions” offering social services to the entire community choose people for their top leadership positions. In other words, a Catholic adoption agency (one of her examples) just might still be free to choose a faithful Catholic as its director, over an “openly gay person” who also wants the job. Below the top leadership, Feldblum would not grant that leeway.

Note, however, that for Feldblum, these extremely limited spheres of freedom are not a matter of right under any reading of the Constitution, or of existing RFRA statutes. They have no connection to “religious liberty” as properly or ordinarily understood, but only to Feldblum’s desiccated notion of a “belief liberty interest.” And they are discrete, wholly optional, and tentatively offered matters of legislative grace. How then can she claim she was misrepresented when Maggie Gallagher quoted her as saying she had a “hard time” imagining circumstances in which “religious liberty” should prevail? That remark in a conversation was wholly consistent with her fully considered, carefully thought-out published views on the subject. It’s clear from her Becket Fund conference paper that she did indeed have a very “hard time” finding legal space for any realm of freedom to dissent from her political agenda.

Marriage and the Left’s Duplicity on Pre-Enforcement Challenges


Premature! A set up! Fabricated! The city never threatened them!

It is rich reading these charges regarding the lawsuit two ordained ministers, Don and Lynn Knapp, recently filed on behalf of themselves and their wedding business, The Hitching Post. As you probably know by now — it is big national news – the Knapps filed the lawsuit to prevent officials in Coeur d’Alene, Idaho, from enforcing a criminal, sexual-orientation nondiscrimination ordinance against them for declining to perform same-sex wedding ceremonies based on their religious beliefs about marriage.

The Knapps filed what is called a “pre-enforcement” challenge. Leftist groups frequently use these types of challenges to advance their agenda, which is why it is so amusing that people in their camp are squawking that the Knapps filed such a suit.

Pre-enforcement challenges are lawsuits filed before actual enforcement of a law.   

These types of lawsuits have a venerable legal pedigree, and play a pivotal role in protecting our precious First Amendment freedoms. They are based on a simple and understandable proposition: that people should be able to challenge a law that threatens their First Amendment rights without having to subject themselves to criminal prosecution. 

The United States Supreme Court has explained it this way in Steffel v. Thompson: ”[I]t is not necessary that [a plaintiff] first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights.” Instead, all a plaintiff needs to show is a “credible threat” of enforcement to go to court and obtain an injunction.

The Knapps easily clear that hurdle. Prior to filing their lawsuit, the city’s deputy attorney gave an interview where he stated: “I would think that the Hitching Post would probably be considered a place of public accommodation that would be subject to the ordinance.” He asserted this again in another interview. City officials then twice confirmed in private conversations with Don Knapp that the Knapps would violate the ordinance if they declined to perform same-sex wedding ceremonies should same-sex marriage be legalized in Idaho. 

Once the Knapps declined a same-sex wedding ceremony October 17, they immediately filed a lawsuit to avoid being subject to jail time and criminal fines under the ordinance simply for exercising their faith. After the lawsuit was filed, city officials sent the Knapps’ attorneys a letter confirming that for-profit wedding chapels, like The Hitching Post, would violate the ordinance if they declined to perform same-sex wedding ceremonies. The letter states that nonprofits are exempt from the ordinance, but that for-profit wedding chapels are not ”if they are providing services primarily or substantially for profit and they discriminate in providing those services based on sexual orientation then they would likely be in violation of the ordinance.” 

The above facts provide a solid foundation for filing a pre-enforcement challenge.  In fact, it is a far more solid foundation than many pre-enforcement lawsuits the Left has filed (and won) to achieve their legal goals. 

For instance, in Virginia v. American Booksellers Association, booksellers filed a pre-enforcement challenge against a Virginia law that made it a crime for any person “to knowingly display for commercial purpose in a manner whereby juveniles may examine and peruse” visual or written material that “depicts sexually explicit nudity, sexual conduct or sadomasochistic abuse and which is harmful to juveniles.”  No government official had threatened the booksellers under the law, yet they filed a pre-enforcement challenge to make sure that adults could access these pornographic (and worse) materials without the “burden” of having to enter an adults-only section of a store.  They eventually won. 

So, think on this folks.  The Left jealously protects its right to use pre-enforcement challenges to make sure adults can access sadomasochistic porn, but denigrates two senior-citizen pastors for using the same mechanism to avoid being prosecuted for exercising their faith.

Don’t be duped. The Left is duplicitous. And that’s putting it nicely.  The Knapps had every right to file a pre-enforcement challenge considering the dire consequences they faced as a result of acting on their religious convictions and declining to perform a same-sex wedding ceremony.  Anyone who found themselves in the Knapps’ shoes would have done the same. 

— Jeremy Tedesco is senior legal counsel with Alliance Defending Freedom. He represents the two pastors who filed suit against the city of Coeur D’Alene, Idaho.

Political Scientists: Significant Illegal Voting by Non-Citizens


On the Washington Post’s Monkey Cage blog, political scientists Jesse Richman and David Earnest of Old Dominion University present the jarring results of a new study (access restricted) that they are publishing in the journal Electoral Studies:

How many non-citizens participate in U.S. elections? More than 14 percent of non-citizens in both the 2008 and 2010 samples indicated that they were registered to vote. Furthermore, some of these non-citizens voted. Our best guess, based upon extrapolations from the portion of the sample with a verified vote, is that 6.4 percent of non-citizens voted in 2008 and 2.2 percent of non-citizens voted in 2010.


Because non-citizens tended to favor Democrats (Obama won more than 80 percent of the votes of non-citizens in the 2008 CCES sample), we find that this participation was large enough to plausibly account for Democratic victories in a few close elections. Non-citizen votes could have given Senate Democrats the pivotal 60th vote needed to overcome filibusters in order to pass health-care reform and other Obama administration priorities in the 111th Congress. Sen. Al Franken (D-Minn.) won election in 2008 with a victory margin of 312 votes. Votes cast by just 0.65 percent of Minnesota non-citizens could account for this margin

It’s also noteworthy that Richman and Earnest find that voter ID laws appear to be “strikingly ineffective”:

Nearly three quarters of the non-citizens who indicated they were asked to provide photo identification at the polls claimed to have subsequently voted.

I of course don’t mean to present the Richmond/Earnest conclusions (which they themselves emphasize are based on a “modest” sample and thus have the “attendant uncertainty associated with sampling error”) as the definitive word on the matter, and I look forward to reading their full study as well as any critiques of it. But if noncitizens (and other persons ineligible to vote) are in fact voting, I would hope that everyone would agree that an effective response to the problem is necessary.

Update: According to Michael Tesler, another blogger at Monkey Cage, “it appears that a substantial number of self-reported non-citizens inaccurately reported their (non)citizenship status in the CCES surveys.” Tesler concludes that the CCES is “probably not an appropriate data source for testing” claims of voting by non-citizens.​


This Day in Liberal Judicial Activism—October 25


1957—No case is too easy for a liberal judicial activist to mess up. In Accardo v. United States, the D.C. Circuit majority concludes, in one apt sentence, that the evidence at trial was sufficient to support a conviction for attempt to commit robbery. What was that evidence? As Judge David L. Bazelon, in dissent, summarizes it: “The complainant, the proprietor of a gas station, testified that, after he had locked up for the night, a man rapped at his door and motioned to him to come to the door. He motioned to the man to go to an open window, which the man did. There followed some talk about a fan belt for an automobile and then the man produced a gun and said, ‘Now, you go over and unlock that door. I’m coming in.’”

Bazelon concludes that the defendant was “entitled to a judgment of acquittal because there was no evidence from which the jury could conclude beyond a reasonable doubt that his purpose in demanding entry was to commit robbery.” “The only evidence relied on to prove the necessary intent,” Bazelon complains, “is the fact that he demanded entry at the point of a gun”! In Bazelon’s confused mind, the possibility that several other intents (murder or mayhem, for example) could be inferred from demanding entry at gunpoint somehow means that the jury did not have sufficient evidence to find beyond a reasonable doubt that the defendant intended to commit robbery.

2001—“I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life,” declares Second Circuit judge Sonia Sotomayor. In the course of her muddled speech to a Berkeley audience, Sotomayor calls into question the desirability of the traditional norm of judicial impartiality and displays a crude quota mentality.

Implementing his promise—or, rather, threat—to select justices based on their willingness to indulge their “deepest values,” “core concerns,” and “the depth and breadth of [their] empathy,” President Obama in May 2009 makes Sotomayor his first pick for the Supreme Court.

2006—Who knew that the Declaration of Independence was a declaration of same-sex marriage? Echoing the Declaration of Independence, the New Jersey constitution provides: “All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness.” Based on this provision, the New Jersey Supreme Court rules (in Lewis v. Harris) that all the rights and benefits of marriage need to be made available to same-sex couples. 

On Taxes and Judges, Governor Sam Brownback Gets It


With less than two weeks to go, Kansas governor Sam Brownback is still in a close race for reelection. He should ultimately prevail, but his leadership on tax reform, and in particular his plan to phase out the state’s income taxes, have caused the Left to come unhinged. And his critics seem to think that if they can defeat Brownback and reverse the reforms achieved in Kansas, they can keep other governors and conservative legislators from getting too excited about tax reform in their states. Not surprisingly, Grover Norquist has called this “the most important race in America.”

But here is another reason conservatives should be very concerned about Governor Brownback’s future: No governor in any state has done more to fight for a judiciary that puts the rule of law ahead of political preferences.

Kansas is one of about a dozen “Missouri Plan” states, which means that the state’s governor must select supreme-court appointments from a list of nominees produced by a bar-dominated commission. So if the left-leaning lawyers who run the state’s legal guild want to undermine or block Governor Brownback’s agenda, they have a judicial branch that is ready, willing, and able. And that is precisely the sort of political wetwork that the Kansas supreme court has engaged in over the last several decades.  

Governor Brownback understood the severity of the problem and went about fixing it just after taking office. In 2011 he urged the legislature to work with him to reform the state’s judicial selection process. In 2012, after reform legislation was defeated by moderate Republicans in the state senate, he campaigned against those incumbents and helped elect a new crop of conservatives who would work with him on this and other priorities.  

In 2013 he intensified his calls for reform by making it a top priority in his state-of-the-state address, saying he would be open to contested elections for all judges, or a method of appointment like the one set forth in the U.S. Constitution. This time he faced a receptive audience among legislators, and when they sent a bill to his desk to abolish the Missouri Plan at the court-of-appeals level, he signed the bill and continued to press for a constitutional amendment to reform the process at the state-supreme-court level.  

In early 2014 when he faced his first court-of-appeals vacancy under the new selection system, he appointed Caleb Stegall, a star in the Kansas legal community who had distinguished himself as a lawyer and as a warrior for conservative causes. Most recently, when faced with a vacancy on the Kansas supreme court, he pulled off a miracle by somehow getting the state’s nominating commission to put Stegall on the list of nominees for that vacancy. He appointed Stegall to the court, giving Kansas its first conservative supreme-court justice in a generation.

And now, in the midst of what has been a surprisingly challenging race for reelection, he has once again made judges a priority. (See this TV ad.) As the Wall Street Journal summarized yesterday:

In a Tuesday debate at the Kansas Association of Broadcasters convention, Mr. Brownback bore down on his attack against the state’s left-leaning Supreme Court. Mr. Davis “wants to continue to appoint liberal judges to that court. I want to appoint judges who will interpret the law, not rewrite it as they choose to see it,” he said.

* * *

Conservative Republicans and Mr. Brownback would like to reform the selection of state high court judges as well, though this would necessitate a constitutional amendment which must be approved by two-thirds of both legislative chambers and a majority of voters. While not implausible—Republicans hold 80% of the Senate and 75% of the House—such a reform would be a heavy political lift.
By campaigning against the liberal judiciary, the governor is laying the groundwork for a future referendum and ratcheting up the stakes of the election.

The rule of law is essential for the promotion of a vibrant economy and a culture that encourages human flourishing. Governor Brownback has demonstrated that he understands that, and that he understands that his state’s broken judicial-selection system undermines the rule of law. I expect him to win, but whether he wins or loses, there is no doubt in my mind that Kansas will be a better state to live, work, and raise a family because of his leadership.

Michael Paulsen on the Supreme Court Last Term


First Things has posted online law professor Michael Paulsen’s excellent essay offering his overview of the Supreme Court’s 2013-2014 Term. Here’s an excerpt:

The biggest cases decided by the Supreme Court in the term that ended this past July concerned, almost without exception, First Amendment liberties of expression, association, and free exercise of religion. And that is appropriate. Those of us whose views are not in accord with the current trend of national politics and policies have little left if deprived of the rights to dispute, to dissent, to resist, to refrain, to refuse, to contest. These freedoms are the last line of defense.…

Measured by the low standards of the desperate, the Supreme Court’s 2013–14 term was on the whole a spectacularly good one. The term was, if anything, a relief. In the cases that really mattered, the Court reached the right results and gave support to the rights of dissenters, albeit with more equivocation and labor than one might have preferred. The opinions typically were not sweeping, beautiful landmarks. But at least they were not the cataclysms that we have so often come to dread, and see.


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