Category Archives: rights

NACs and the Takings Clause

Posted on by
Reply

The SEC is looking at allowing a new class of enterprises, Natural Asset Companies, to be listed on the NYSE. NACs are companies that would raise capital via the Exchange and ultimately purchase land to prevent its use for natural resource extraction. That is, their sole purpose would be not to make money for their owners, vis., by developing that land or any minerals or other wealth in/below that land, but rather by simply sequestering the land and sitting on it, preventing any wealth creation from it.

In response to a broad-based hue and cry, the SEC has reopened and extended the comment period for this proposed action, but the fact remains, the agency is seriously considering such an action. Utah State Treasurer Marlo Oaks is one of a number of State officials from 21 different States who protested the rule and forced the reopening of the comment period, and who object generally to the rule and its underlying concept altogether. His take on this SEC foolishness:

The proposed creation of Natural Asset Companies is one of the greatest threats to rural communities in the history of our country. Under the proposal, private interests, including foreign-controlled sovereign wealth funds, could use their capital to purchase or manage farmland, national and state parks, and other mineral-rich areas and stop essential economic activities like farming, grazing, and energy extraction. Recreating on Utah’s incredible natural lands could also face significant curtailment.

Marlo could speak only for Utah in the particular examples, but the situation is the same in all 21 States, and in the other 29 States and the several territories of our nation.

However, this might be a venue in which the Left’s views of private property, given concreteness in the Supreme Court’s badly misguided decisions in Berman v Parker, Hawaii Housing Authority v Midkiff, and Kelo v City of New London could come back to bite them. In Kelo, especially, the Court ruled that it was perfectly jake for private property, a widow’s home, to be seized by the city of New London, CT, and turned over to a private enterprise, a mall developer, for his benefit, and further that such seizures need not be limited to public use: the developer wanted to build another mall, a private use, on land that included the widow’s home.

Were the SEC to follow through, and its rule to stand, then it could be that suitably situated State governments could then seize the NACs’ land holdings and turn them over to State agencies for public use, per the original text and meaning of our Constitution’s 5th Amendment Takings Clause, or, per Kelo, to private enterprises for private exploitations of the lands.

Here’s that Takings Clause:

…nor shall private property be taken for public use, without just compensation.

 

Berman, Midkiff, and Kelo can be read here, here, and here, respectively.

Search Warrants and Sect 702

Posted on by
Reply

The Wall Street Journal editors are worried about a House Judiciary Committee proposal to reform Foreign Intelligence Surveillance Act’s Section 702 (the proposal has subsequently been withdrawn for unrelated reasons). Their plaint centers on the Committee’s proposal to require search warrants to look at emails already lawfully collected.

The House Judiciary Committee…bill would require a warrant for queries of US persons, even though the information was already lawfully collected.

Contra the worthies at the WSJ, the Judiciary bill is well down the right track. The information about which the editors worry was, indeed, lawfully collected, but only as a side effect of the collection run against a foreign entity. To explicitly look at—to read—those accidentally collected emails, to make those emails explicit targets of a search, that absolutely should require 4th Amendment search warrants.

Further, those warrants should be issuable only by an Art III judge or a magistrate directly subordinate to an Art III judge, and the FISA court should be removed completely.

Convenience and the FBI

Posted on by
Reply

Stewart Whitson, late of the FBI and currently Foundation for Government Accountability Legal Director, decried in his Tuesday Wall Street Journal op-ed, a Consumer Financial Protection Bureau effort to completely eliminate the ability of credit-reporting companies to sell credit-header data to law enforcement agencies, including to the FBI. Those header data include a variety of identifying material but, as Whitson was careful to emphasize, no financial information.

This, actually, is one of the few things the CFPB would get right were it to follow through.

In support of his plaint, Whitson related an 8-year-old incident in which he and a partner were conducting surveillance on a suspect and observing his contact with a third individual. Whitson bragged about being able to use credit-header data—but no financial data, mind you—to contact that third individual, arrange a meeting, and through that, foil the suspect’s planned terrorist attack.

Without the credit-header data, we might not have been able to contact the occupant for a while, giving [the suspect] more time to carry out his attack.

Whitson bragged about FBI success with such purchases and then put his disingenuous question.

I worked on hundreds of terrorism-related investigations at the FBI, all of which relied on credit-header data. Why doesn’t the CFPB want law enforcement to have quick access to this information?

Perhaps because the purchases are, at bottom, violations of our Constitution’s inconvenient 4th Amendment, regardless of their convenient-to-government speed.

How inconvenient it is, after all, to follow the Constitution’s requirement for warrants before searches occur. That the FBI got lucky—or even that purchasing personally identifying data (the lack of financial data being a cynically offered red herring here) materially helped—in no way legitimizes the FBI’s bypassing Constitutional requirements.

Get the warrants. If it often takes too long to get them, and that’s a legitimate beef, work on streamlining the process through the political branches of our government: the House and Senate. The Executive Branch does not get to skip the hard work or usurp political branch authorities.

Not even when its FBI claims that anxious and enthusiastic mothers at school boards are akin to domestic terrorists or that traditional Catholics are behaving suspiciously.

Customer Choice

Posted on by
Reply

New Mexico’s Progressive-Democrat Governor Michelle Lujan Grisham has gotten to be enacted rules mandating battery cars and trucks in New Mexico.

Starting in calendar year 2026, 43% of all new passenger cars and light-duty trucks shipped to New Mexico auto dealerships by national auto manufacturers must be zero emission vehicles. Similarly, beginning in calendar year 2026, 15% of all new commercial heavy-duty trucks shipped to New Mexico auto dealerships by national auto manufacturers must be zero emission vehicles. These percentages gradually increase over time.

“Increase over time:” by 2031, those 43% rise to 82%. By 2034, the minima for Ford F-250, Ford F-450, and tractor-trailer type trucks rise to 55%, 75%, and 40%, respectively.

Disingenuously, Lujan Grisham says regarding those limits on choice,

The adoption of these rules is a victory for customer choice….

That’s the Progressive-Democrat’s definition of customer choice: the State taking on the burden of choosing, thereby relieving its subjects citizens of that burden.

No. I decline to use Lujan Grisham’s Newspeak Dictionary. I’ll stay with American English dictionaries and their definitions of “customer choice:” us ordinary Americans acting on our own selections.

That choice is clear, too, for the good citizens of New Mexico, who’ve already made theirs: less than 1% of the 650,000 vehicles registered in New Mexico, despite tax credits, are EVs. Those good citizens do, however, need to select better at the next ballot box.

Religious Persecution

Posted on by
Reply

Finland Member of Parliament Päivi Räsänen and Lutheran Bishop Juhana Pohjola stood (still stand?) accused by Finnish prosecutor Anu Mantila of the heinous hate speech crime of quoting from the Bible.

Finnish district courts said, no, and acquitted the two. The prosecutor objected and took the cases to a Finnish appellate court—where the two were once again acquitted. Räsänen:

It isn’t a crime to tweet a Bible verse, or to engage in public discourse with a Christian perspective. The attempts made to prosecute me for expressing my beliefs have resulted in an immensely trying four years, but my hope is that the result will stand as a key precedent to protect the human right to free speech.

Mantila’s weasel-worded rationalization of her decisions:

You can cite the Bible, but it is Räsänen’s interpretation and opinion about the Bible verses that are criminal[.]

Well, no, they’re not, not within any universally recognized concept of free speech and opinion-uttering.

Mantila may well appeal again, to the Supreme Court of Finland. If she does, the case will cease to be a matter of prosecution (if it ever was); it will be naked religious persecution and a parallel direct attack on the principles underlying free speech.