Category Archives: Courts

In Which a District Judge is Mistaken

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DC District Judge Amy Berman Jackson has issued a temporary restraining order blocking the Trump administration from firing any CFPB employee except for cause, and cannot proceed with any large-scale reduction-in-force of staff. The judge is badly mistaken here.

The question centers on this: either the CFPB is part of the Executive Branch, or it is not. The answer is muddied, though not badly, by the then-Progressive-Democrat-controlled Congress’ cynical creation of the Board as funded by its own draws on the Federal Reserve Bank of the United States—draws of whatever magnitude the Board demands and that the Fed would be bound to pay up—and of its Chairman being unremovable by the President.

If the Board is not a part of the Executive Branch, then by its Design Specification, it is a fourth branch of the Federal government. It was designed to operate wholly independently of the Executive Branch and given free reign [sic] to operate similarly independently of Congress, which has wholly yielded up its purse string control of it. That would make the Board an unconstitutional creation whose existence must be ended on that ground.

However, the Supreme Court has ruled that, contra that Congress’ construction, the Board Chairman can, in fact, be removed by the President for any or no reason at all, because the Board is, in fact, an Executive Branch agency, and so under the control of the President, just the same as are all other agencies and Departments of the Executive Branch.

Since the Board is an Executive Branch agency, the President has the hiring and firing authority he needs to terminate any and all Board members and employees, subject only to already existing due process requirements. These requirements are in flux, too, as the President has considerable, although not total, authority to alter the nature of those requirements.

I look for the Supreme Court to rule in the administration’s favor (the DC Circuit is unlikely to overrule her).

On Birthright Citizenship

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William Galston, in his Wall Street Journal op-ed insists that President Donald Trump’s (R) Executive Order regarding birthright citizenship—which says that children born to illegal aliens or birth-tourism mothers are not ipso facto entitled to American citizenship—is unconstitutional. Galston correctly hangs his argument on the 14th Amendment’s first clause phrase subject to the jurisdiction thereof (of the United States). He’s also correct in that some case law could serve as impediments to enforcing Trump’s EO and that some Supreme Court precedential rulings that touch on birthright citizenship also could so serve.

Here’s the importance of that phrase, albeit it’s an importance that Galston and others objecting to the EO completely miss. Illegal aliens have held themselves outside our legal jurisdiction from the very beginning—their illegal entry into our nation in violation of the laws, the jurisdiction, of our nation—and they continue to hold themselves outside our jurisdiction by their continued status as illegal aliens.

A similar case applies to those birth-tourism mothers. They have no intention whatsoever of remaining—legally—and so submitting themselves to our nation’s jurisdiction. They have every intention of remaining citizens, subject to the jurisdiction, of their home nation.

Because these two groups refuse our nation’s jurisdiction, birthright citizenship can never, legitimately, apply to their children for all the accident (deliberate or not) of the geography of their birth.

Here is an instance where the over-sanctification of precedent could be corrected in the specific instance: overturn the wrongly decided case law and correct those past Supreme Court precedents. Recognize via Court ruling the plain, obvious, and rational meaning of the 14th Amendment’s phrase. That’s a requirement the Supreme Court has emplaced a number of times.

A Plenty Good Enough Reason

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President Donald Trump (R) is preparing a series of sanctions against the anti-Semitic International Criminal Court and the bigots populating it. Naturally, those…persons…are unhappy. One carefully anonymous official:

The concern is the sanctions will be used to shut the court down, to destroy it rather than just tie its hands[.]

After all, as Ellie Grant wrote at the link,

Such a move, they say, could bring the court to a standstill, severely hindering its access to the services it depends on to function.
One of the most significant risks posed by sanctions would be the disruption of the court’s ability to access banking and payment systems, IT infrastructure, and insurance providers. A complete block on these services, including US-based companies, would apparently cripple the court’s day-to-day operations.

Since this institution spends so much of its time, funding, IT work, and insurance proceeds attacking Israel and the men and women of the Israeli government on trumped up complaints, these are sufficient, and necessary, reasons for applying the sanctions and shutting off, and shutting down, the nakedly biased institution.

Removing the DA from the Case

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That’s what a Georgia State appellate court has done with Fani Willis. She’s off the case she had brought against former President and present President-elect Donald Trump (R) over his alleged interference with the results of the 2020 Presidential election. (She’s appealing the matter to the State Supreme Court.)

The court ruled, in part, that she needed to be removed because the

remedy crafted by the trial court to prevent an ongoing appearance of impropriety did nothing to address the appearance of impropriety that existed at times when DA Willis was exercising her broad pretrial discretion about who to prosecute and what charges to bring.

The appellate court also did not toss the case itself. Inconvenient as this will be for Trump, it actually has the potential to work strongly for his benefit. It’ll be better for the case to be tossed on its (lack of) merits than on the technicality of tossing it as punishment of the prosecutors. The latter outcome would leave the question of Trump’s alleged interference hanging. Winning the case outright, or getting it tossed because no other Georgia prosecutor wants to touch it, would put the question to rest in all of our minds save those of pressmen and Never-Trump hysterics.

Not Necessarily

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The Supreme Court has the case of Seven County Infrastructure Coalition v Eagle County, which concerns an 88-mile railway bringing oil and farm goods out of rural Utah. It’s wholly contained within Utah. Colorado’s Eagle County is suing to block the Utah railway on the claim that the National Environmental Policy Act required the Surface Transportation Board to

analyze possible impacts as far away as the Gulf Coast, where the exported oil might be refined, and the environmental effects of “long-term employment and commercial activity” resulting from the railway.

The DC Circuit (! not the 10th Circuit, which includes both Utah and Colorado) agreed with Eagle County, which is why the case now is in front of the Supreme Court.

The Seven County argument is that

it shouldn’t have to analyze the environmental impact of anything not directly associated with railroads. It should be responsible only for the “proximate effects” of development over which it has regulatory authority.

The WSJ editors went on at length about why and how circuit ruling should be reversed, but they began with this:

[E]stablishing a predictable principle to guide future decisions about infrastructure development and prevent further litigation will be difficult. Litigants will have to parry a barrage of unpredictable hypotheticals….

Not necessarily. The guiding principle is clearly laid out by the Seven Counties: if the alleged environmental impact of a thing isn’t directly associated with that thing, there’s no analysis needed of that allegation. Full stop.

Regarding those “unpredictables,” there already is case law barring speculative lawsuits. Indeed, the Supreme Court already has repeatedly held that agencies needn’t consider indirect and unpredictable impact, most recently in Department of Transportation v Public Citizen. If litigation still gets out of hand, SLAP sanctions are available.

Eagle County’s case is just another of those quibbles for interference’s sake that the Court needs to stoutly chastise along with reversing the DC Circuit’s ruling.