Category Archives: Courts

Reforming FISA

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One outcome of Special Counsel John Durham’s testimony in front of the House Judiciary Committee is an apparently re-energized, at least by many in the Republican caucus and a few Progressive-Democrats, to reform The Foreign Intelligence Surveillance Act. That’s all to the good, to the extent any serious reform actually occurs.

The most important reform of this Act, though, is the complete elimination of the secret Star Chamber that is the FISA Court. Federal Judges have long known how to seal records that legitimately don’t belong in the public’s eye, at least in the moment. The court’s proceedings, though, are, and should be, public.

So it must be for any sort of FISA-related court. Relevant records can be sealed—primarily the warrants FBI agents are seeking, which process is old hat for any legitimate Article III court, as well as State courts—until the warrants are executed. But this FBI has demonstrated that it will openly lie to the FISA court and that it will fabricate evidence in order to get their warrants. That’s on the FBI. What’s on the FISA court judges is their blithe acceptance of further FBI blandishments after the FBI had been caught out in its dishonesty. That makes the FISA court complicit in the dishonesty.

That badly wants the elimination of the secret court. There is no alternative; there must be no secret courts in the United States.

Full stop.

Politely

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DHS Secretary Alejandro Mayorkas lost his appeal from a Federal district court’s injunction blocking DHS from implementing a policy that allows for the release of migrants into the US without court dates. The Appellate Court summarized (within my own summary) Mayorkas’ plaint [italics added]:

As to irreparable injury, [DHS argued among other things]…”The most immediate consequence of the [District Court’s] orders,” according to DHS, “will likely be [the] overcrowding [of] CBP facilities during increases in border encounters,” which would threaten the “health, safety, and security” of USBP officers and aliens.

The Appellate Court wrote in part:

To start, DHS’s claims of irreparable injury ring somewhat hollow on this record, considering the department’s track record of overstating similar threats in the underlying proceedings. For instance, on January 12, 2023, DHS represented to the district court that any vacatur of the Parole+ATD policy would result in “disastrous consequences” for the management of the border starting the very next day. DHS made the same representation again on February 16, 2023. But, in truth, CBP had stopped using the Parole+ATD practices as of January 2, 2023, and DHS now admits that it was able to “manage[] its detention capacity [since January] using many other tools at its disposal.” The department’s ability to ascertain future harm is uncertain at best. Given this record, we take DHS’s latest claims of impending disaster if it is not allowed to use either of the challenged policies with some skepticism.

And

Recent data from the border casts further doubt on DHS’s irreparable-injury argument. Contrary to DHS’s catastrophic predictions, the number of daily encounters with aliens did not surge in the days following the expiration of the Title 42 order on May 11, 2023, but instead fell significantly. Compare Doc. 13-1 ¶ 11 in No. 23-cv-09962 (predicting a daily average of 12,000–14,000 encounters), with Doc. 28 at 4 in No. 23-cv-09962 (showing that the number of encounters dropped from 9,649 on May 11, 2023, to 4,193 on May 14). DHS has neither explained how that data is consistent with its representations nor provided any more recent data demonstrating a surge in illegal crossings at the border. This Court will not find irreparable harm based on mere conjecture.

This is the court calling Mayorkas—politely, mind you, and with the circumlocutions for which courts are well-known—a liar. Which he is. Now the case, State of Florida v United States of America, et al., will finish its wending through our courts with the block on blanket release without any requirement to show up in court remaining in place.

The 11th Circuit’s ruling (nearly unanimous; one judge concurred in part and dissented in part) can be read here. It’s a breathtakingly terse dismissal of Mayorkas’ dishonesty.

Rogue Judge

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A couple of teachers had the impudence to demur from compulsory “antiracism training” imposed by their Springfield Public Schools district managers.

In response, US District Judge Douglas Harpool, of the Western District of Missouri, not only ruled against the teachers, he ordered them to pay $313,000 in legal costs for bothering the district, and he did this cavalierly disregarding their arguments and issuing his ruling via summary judgment—which means the court—Harpool—never really took the case up, or took it seriously. He wrote in pertinent part, as summarized by Just the News:

They have not provided evidence they were compelled to “speak favorably” about the district’s message or “somehow affiliate or associate” with that message, as evidenced by Lumley’s allegation that “her own coworkers berated her during training” for disagreeing, Harpool wrote.” about the district’s message or “somehow affiliate or associate” with that message, as evidenced by Lumley’s allegation that “her own coworkers berated her during training” for disagreeing, Harpool wrote.

Never mind that the very parts that Harpool cited demonstrates the compulsory nature of the requirement not to speak unfavorably about the district’s “message” and not to remain unaffiliated or unassociated with the district’s “message.” That pressure to not be unaligned or to not speak unfavorably is exactly the compulsion to speak favorably and to align. The fact that the beratement went unchallenged by the program’s instructors or the district’s managers further emphasizes the compulsory nature of the district’s “message.”

This is a Federal judge who needs to be removed from the bench forthwith. He has shown himself not just incapable of, but openly refusing to, adjudicating a case objectively and on the basis of the facts and statute(s) presented. Instead, Harpool reigns over his court on the basis of his personal agenda.

Harpool’s ruling can be read here.

Typical Arrogance of the “Experts”

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US District Judge Matthew Kacsmaryck, of the Northern District of Texas, has ruled that the FDA’s approval of the abortion drug mifepristone must be withdrawn and the drug pulled from the market while an existing court case makes its way through, and he made his ruling nation-wide.

The Court does not second-guess FDA’s decision-making lightly. But here, FDA acquiesced on its legitimate safety concerns—in violation of its statutory duty—based on plainly unsound reasoning and studies that did not support its conclusions[.]

No, no, no—leave our precious technocrats alone is the Leftist Lawyer cry. Only Government knows best. How dare anyone challenge Government’s experts. Areta Kupchyk, ex-FDA Associate Chief Counsel:

If the court does not defer to FDA, it would undermine FDA’s authority and set a precedent for second-guessing by judges wholly unqualified to evaluate scientific data[.]

This is the typical arrogance of Government “experts.” No one but these bureaucrats who hold one or another science degree are qualified to reign over the scientific world—and over us citizens.

No. It’s time Chevron Deference-style foolishness was done away with. It’s time our Article III courts acted like the coequal branch of our Federal government that they are instead of meekly bowing and subordinating themselves to junior agencies of a separate coequal branch.

That doing-away may finally be beginning.

Biden Courts

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Last Wednesday, Magistrate Judge and Biden nominee to a Federal judgeship in the US District Court of Colorado Kato Crews was asked about a legal procedure and then a Supreme Court ruling that any first year law student would have known the answers to. Senator John Kennedy (R, LA) asked Crews

how he would “analyze a Brady motion,” with Crews answering that he had not “had the occasion to address a Brady motion” during his four and a half years on the bench.

Kennedy followed that with a question of whether Crews remembered the Supreme Court case Brady v Maryland and what the case held. Crews:

I believe that the Brady case involved something regarding the Second Amendment. I have not had an occasion to address that.

Here’s a snippet of that exchange.

A Brady motion is a move to require the prosecution in a criminal case to turn over to the defense any information favorable to the defense that the prosecution’s own investigation turns up. The motion is one of the outcomes of Brady v Maryland, which was decided 60 years ago. Those first-year students wouldn’t have had an occasion to address either of those, either, but they would have known the answers, anyway.

This failure comes on the heels of Spokane County Superior Court Judge Charnelle Bjelkengren, nominated to a Federal judgeship in the US District Court for the Eastern District of Washington, who could not answer Kennedy’s even more basic questions of Articles V and II of our Constitution do. Neither article, Bjelkengren said, come to mind.

Breathtaking as these two Federal judge nominees’ ignorance about laws, legal procedures, even our Constitution is, what’s far worse is the quality of “judges” President Joe Biden (D) is choosing to nominate to our Federal judicial bench. It’s like the 40-year lawmaker cum President is himself entirely ignorant of American law and of our Constitution. Or like he doesn’t care.