Flynn, Mandamus, and the DC Circuit

The DC Circuit has decided to rehear General Michael Flynn’s request for a mandamus ruling ordering the DC District Court to accept Flynn’s motion—agreed and proffered by DoJ—to drop entirely the case against Flynn. The Circuit plainly does not trust the original Circuit ruling to issue the mandamus and so to order the lower court.

The Wall Street Journal has opined on the matter. While I disagree with the DC Circuit’s decision to retry the Flynn mandamus appeal en banc, I more strongly disagree with the WSJ‘s rationale for not rehearing it.

More Disingenuosity

The Supreme Court has ruled—7-2—in favor of the Little Sisters of the Poor and other organizations. The Court upheld the Trump administration’s rule exempting these employers from an Obamacare requirement to provide insurance coverage that includes contraception.

Justice Clarence Thomas wrote for the Court:

We hold today that the Departments had the statutory authority to craft that exemption, as well as the contemporaneously issued moral exemption. We further hold that the rules promulgating these exemptions are free from procedural defects.

Justice Ruth Bader Ginsburg dissented.

Support for the 10th Amendment

From an unexpected quarter. The Supreme Court has ruled against Washington State in its suit regarding faithless electors. The decision was unanimous, and the opinion held in part

Nothing in the Constitution expressly prohibits States from taking away presidential electors’ voting discretion as Washington does[.]

And

The Constitution’s text and the nation’s history both support allowing a state to enforce an elector’s pledge to support his party’s nominee—and the state voters’ choice—for president[.]

That’s a reflection of our Constitution’s 10th Amendment and an affirmation of textualism, and that’s what makes it surprising, coming as it does from the ruling’s author, Justice Elena Kagan.

A Judicial Error

The Supreme Court has ordered a restructuring of the Consumer Financial Protection Bureau: its single director, removable only for inefficiency, neglect of duty, or malfeasance in office, among other things, was an unconstitutional abridgment of Executive Branch authority.

Chief Justice John Roberts, writing for the Court, said that the

setup meant the CFPB’s director was unaccountable to the executive branch, creating an unconstitutional diminishment of presidential power.
“The CFPB’s single-director structure contravenes this carefully calibrated system by vesting significant governmental power in the hands of a single individual accountable to no one[.]”

And then,

A Judicial…Misunderstanding

The Supreme Court has struck Louisiana’s abortion law that required doctors to have admitting privileges at a nearby hospital before they could be permitted to carry out abortions. The ruling was by a 5-4 vote; the five hung their ruling on the Court’s 2016 Whole Woman’s Health decision holding that there were “no medical benefits” to such a requirement, and so “a woman’s constitutional right to end a pregnancy” was circumscribed.

One of the five was Chief Justice John Roberts.

Here’s his rationalization for his vote:

Amy Klobuchar Withdraws

…because sexist racism!?

Senator Amy Klobuchar (D, MN) has taken herself out of consideration for the Progressive-Democratic Party’s nomination for Vice President alongside Joe Biden.

Klobuchar told MSNBC‘s Lawrence O’Donnell she called Biden Wednesday evening with her decision, saying she believes “this is a moment to put a woman of color on that ticket.”

First, Biden showed appalling sexism with his insistence that he’ll have a woman Vice President candidate because she’s a woman, not because the most meritorious candidate happens to be a woman.

A Judge Makes a Clear Ruling

It’s “only” a Temporary Restraining Order by a county judge—Clay County, Illinois, Judge Michael McHaney—but the judge’s ruling is clear, plain spoken, and he speaks for Americans all across these United States.

Limit FISA Surveillance?

Certainly, the process is beset with vast, and serious, problems.

Mr [DoJ Inspector General] Horowitz’s staff reviewed a sample from a recent five-year period, October 2014 to September 2019, during which the eight FBI field offices applied for more than 700 surveillance warrants on US persons. Each of the reviewed files contained errors, inconsistencies and omissions. After reviewing the report, the FISA court’s Chief Judge James E Boasberg issued a rare public order. He told the government to undertake steps to ensure the accuracy of FISA applications. Yet inaccuracy isn’t the only problem. The use of FISA against a US citizen presents a fundamental threat to civil liberties. It essentially suspends the Constitution.

An Expansionist Germany

Not military expansion, but a more insidious one: legal expansion.

The German government must come up with a new law regulating its secret services, after the country’s highest court [Federal Constitutional Court] ruled that the current practice of monitoring telecommunications of foreign citizens at will violates constitutionally-enshrined press freedoms and the privacy of communications.

And:

The key legal question was whether foreign nationals in other countries were covered by Germany’s constitution….

Why, yes, yes they are. Because German sovereignty reaches deep inside other nations’ borders, other nations’ legal and political jurisdictions, overrides those nations’ own sovereignty. Germany’s laws not only apply outside German borders, they apply inside other nations’ borders.

Finally, Some Recognition

…of the role of Federal laws in State activities. Recall that two New Jersey officials of then-Governor Chris Christie’s (R) administration were convicted in Federal court for

hav[ing] participated in a 2013 scheme to create traffic backups in Fort Lee, NJ, by limiting motorists’ access to the George Washington Bridge that crosses into New York—in retaliation against Fort Lee’s Democratic mayor, Mark Sokolich, for not supporting the re-election bid of Mr Christie, a Republican.

The Supreme Court, unanimously, tossed those convictions. The unanimity of the throwing out is made the more noteworthy by this money quote, by none other than Justice Elena Kagan, who wroteg for the Court: