Category: judiciary

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crime and punishment judiciary regulation

The Court v. the Power Grabbers

bureaucrats, regulations, deep state, law

The U.S. Supreme Court giveth and the U.S. Supreme Court taketh away.

A slew of Supreme Court decisions is keeping us off balance. While we were still reeling from the blow delivered by Murthy v. Missouri’s go-​ahead for federal suppression of social-​media speech, the court also acted to rein in runaway bureaucrats.

The decision, which some call a “major blow to big government”  — let’s see how it plays out before echoing this — is Loper Bright Enterprises v. Raimondo. In this 6 – 3 ruling to limit the administrative state’s power to expand its power, the court reversed its own 1984 ruling, Chevron USA v. NRDC.

According to Stanford Law professor Michael McConnell, Chevron meant that when the actions of a federal agency — to stop you from cleaning up a pond (“wetland”) on your own property or whatever — end up being litigated, courts must “defer to the agency’s own construction of its operating statute” unless that construction is too wildly unreasonable.

Agencies consequently enjoyed “considerable leeway in determining the scope” of what they can do to us. 

Guess what. They typically prefer more power to less, less constitutional restraint to more.

“Chevron is overruled,” the new ruling states. Courts must “exercise their independent judgment in deciding whether an agency has acted within its statutory authority, and courts may not defer to an agency interpretation of the law simply because a statute is ambiguous.”

Maybe more courts will now more often stop runaway bureaucrats in their tracks.

This is Common Sense. I’m Paul Jacob.

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crime and punishment First Amendment rights judiciary

States Without Standing

Friends of freedom of speech had been looking forward to a certain U.S. Supreme Court decision, Murthy v. Missouri.

The Biden administration has for years worked to suppress social-​media speech that disputes official government doctrines about biology, pandemic policy, elections, and other controversial matters. In short, the kind of speech the First Amendment was designed to protect.

Several suits have been launched against the federal government’s censorship. This one had been brought by Louisiana, Missouri, and other states, abundantly proving that administration officials actively pressed social-​media companies to suppress speech.

By a 6 – 3 vote, the court tossed lower-​court rulings that favor the states’ position. According to the decision’s coiled reasoning, the states lack legal right to sue. They lack standing.

Dissenting: Justices Alito, Gorsuch, Thomas.

The majority made a big point of ruling only on this question of “standing” — which none of us speakers of speech have, apparently — and not on the main question. We can hope, I guess, that some other case will someday be brought by plaintiffs whose rights the majority will concede have been infringed by the government’s infringing actions, which by their nature assault the right of freedom of speech of all Americans.

Meanwhile, in the words of Louisiana Attorney General Liz Murrill, the court’s decision “gives a free pass” to the government’s efforts to “threaten tech platforms into censorship and suppression of speech that is indisputably protected by the First Amendment.”

This isn’t a minor procedural setback.

This is Common Sense. I’m Paul Jacob.

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initiative, referendum, and recall judiciary term limits

A Second Life for Limits

Congress, age limit, voters, democracy

Will the Supreme Court let states impose limits on the representatives and senators they send to Washington, D.C.?

Thanks to events in North Dakota, there’s a good chance this question is about to asked again. 

And get a different answer.

The first time was thirty years ago. The case: U.S. Term Limits v. Thornton.

In May 1995, the U.S. Supreme Court held, in a 5 – 4 decision, that states cannot impose restrictions like term limits on their congressional delegations.

But: “Nothing in the Constitution deprives the people of each State of the power to prescribe eligibility requirements for the candidates who seek to represent them in Congress,” observed Justice Clarence Thomas in his dissent. “And where the Constitution is silent, it raises no bar to action by the States or the people.”

Now 61 percent of North Dakota voters have passed a ballot measure to impose an age limit on their congressmen. The 1995 Supreme Court would have ruled it unconstitutional. The only justice serving on the high court then who is still there is Thomas.

Everybody thinks that North Dakota’s outlawing of ancient candidates will be challenged in court. In a June 17 podcast for U.S. Term Limits, its president, Philip Blumel, says that USTL would welcome such a challenge.

“Surely, U.S. Term Limits versus Thornton would be the basis” for the challenge and would thus “provide an opportunity for the U.S. Supreme Court to revisit the issue.”

Moreover, a case brought in federal court won’t necessarily take years to decide, because “sometimes the [Supreme Court] expedites election-​related cases.”

Fingers crossed, everybody.

This is Common Sense. I’m Paul Jacob.

NOTE: Paul Jacob is a former president of U.S. Term Limits and continues to serve on its board of directors. Paul is currently the president of Liberty Initiative Fund, which made significant contributions to North Dakota’s age limits initiative.

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Fourth Amendment rights judiciary property rights

Against Government Invasion

property, rights, invasion, civil rights

Unconstitutional searches of private property by a renegade Tennessee government agency may be coming to an end.

Unanimously upholding an earlier decision, a Tennessee Court of Appeals has ruled that no, Tennessee Wildlife Resources Agency employees have no right to ignore No Trespassing signs on private land — not even to enter it, let alone install cameras there in search of a crime.

The court ruled in a case brought by the Institute for Justice on behalf of Terry Rainwaters and Hunter Hollingsworth.

“TWRA claimed unfettered power to put on full camouflage, invade people’s land, roam around as it pleases, take photos, record videos, sift through ponds, spy on people … all without consent, a warrant, or any meaningful limits on their power,” says IJ attorney Joshua Windham.

“This decision confirms that granting state officials unfettered power to invade private land is anathema to Tennesseans’ most basic constitutional rights.”

The ruling cites the observation of legal scholar John Orth that “‘general warrants’ and ‘writs of assistance,’ authorizing officers to search anyone, anytime, for evidence of any crime” were among the abuses leading to adoption of the Fourth Amendment of the U.S. Constitution prohibiting “unreasonable searches and seizures.”

“The various state constitutions adopted after the Revolution almost invariably forbade the practices,” Orth notes.

According to the new ruling, Tennessee’s constitution does too. But we may not be quite done. The TWRA can appeal, which means that the case may end up in the Tennessee Supreme Court.

This is Common Sense. I’m Paul Jacob.

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judiciary national politics & policies regulation

Regulatory Pressure?

gun control, Supreme Court, regulations, regulators, persuasion

Should government regulators be able to urge financial institutions to cancel clients that regulators dislike for political reasons? Such as oil companies and groups advocating Second Amendment rights?

Although a court of appeals has said Yes, the Supreme Court has just said Maybe No in a case involving the National Rifle Association (NRA v. Vullo).

The NRA hasn’t won final victory. But the court is unanimously letting it proceed with its lawsuit, which argues that by pressuring banks and insurance companies to cancel their business with the NRA, New York regulator Maria Vullo violated its freedom of speech.

The Supreme Court seems to accept an artificial distinction, though, between a regulator’s “persuading” an organization to hurt a client and “forcing” it to do so.

An official with power over a company who seeks as a government official to “persuade” that company to do something is engaging in coercion. The implicit threat is: “I have the power to hurt you if you don’t do this little favor for me.”

Moreover, in sending the case back to the lower court, the Supreme Court has also said that it may consider whether Ms. Vullo is protected by qualified immunity, the get-​away-​with-​anything card that government officials are too often able to rely on when they commit wrongdoing.

So this decision is hardly a final, definitive victory for the NRA and other victims of thug-​regulators. But at least the NRA can keep fighting — for itself and the rest of us.

This is Common Sense. I’m Paul Jacob.

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ballot access election law judiciary

A Done Decision

rock climber

We probably needn’t feel suspense about whether the Wisconsin Supreme Court will let certain sloppy voting practices continue.

The Wisconsin Institute for Law and Liberty and the chairman of the Racine County Republican Party filed a lawsuit alleging that Racine city officials illegally used a van to collect absentee ballots in 2022. A circuit court ruled that such mobile voting sites violate state law.

Now, “without allowing any lower appellate courts to rule first,” the state’s supreme court will decide whether the circuit court is right about that.

The high court voted 4 to 3 to accept the case. The three justices who opposed end-​running the appellate courts are conservative (read: Republican); the other four are liberal (read: Democrat).

The Democrat justices voted to take the case at the request of the Democratic National Committee, which leads a political party known to be a proponent of slapdash voting procedures, slapdashery that observers tend to agree favors Democrats.

Chief Justice Annette Ziegler, who is part of the conservative bloc, has stated that the “liberal” justices proceeded in this way in order to help the Democrats politically. Ziegler knows her “liberal” colleagues, and I guess they must be the sort of progressives who don’t make conscientious adherence to the law in the service of election integrity a top priority.

So I think what’s about to happen is more of a foregone conclusion than it is a cliffhanger.

We know how the court will decide — but wouldn’t we love a surprise ending?

This is Common Sense. I’m Paul Jacob.

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