The Supremes Get One Right

Posted on 24 June 2018 by eehines

The Supreme Court ruled Friday that authorities generally need a search warrant before they can obtain broad access to data that shows the location of cellphone users, a decision that sets privacy boundaries in the digital age.
The court, in a 5-4 opinion by Chief Justice John Roberts, cited the Fourth Amendment’s guarantee to be free from unreasonable government searches.

And

We decline to grant the state unrestricted access to a wireless carrier’s database of physical location information[.]

Yewbetcha.

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A Concept of Privacy

Posted on 1 June 2018 by eehines

Personal privacy and protections against warrantless searches got a boost from the Supreme Court earlier this week.

The Supreme Court said Tuesday that police need a warrant to search vehicles parked at private homes, the second time this month the justices rejected government arguments for expanding the “automobile exception” to Fourth Amendment rules against unreasonable searches.

The case at hand involved a stolen motorcycle parked in the driveway of a private residence and protected from the elements (and perhaps (even probably) from being seen by police) by a tarp. A police officer recognized from Facebook postings the residence, saw the fact of a motorcycle under the tarp, entered the property, lifted the tarp, and looked over the motorcycle—all without a warrant.

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A Tenth Circuit Speculator

Posted on 22 May 2018 by eehines

The Institute for Justice summarized a 10^th Circuit case regarding a car involved in an immediately prior weapons case, its driver, and a weapon thusly:

Aurora, CO, police run tags on car with broken tail light, discover the car was seized three weeks earlier in weapons-possession case and a man (a known gang member) associated with the car was arrested. They pull it over; the man is in it; they frisk him and find a gun. He’s charged with being a felon in possession. Suppress the evidence? No need, says the 10^th Circuit. Though he was calm and compliant, officers were justified in patting him down to ensure their safety.
Dissent: The gov’t is going to use this decision to justify frisks in a much broader variety of circumstances than the ones here.

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Congressional Intent

Posted on 17 May 2018 by eehines

In a piece centered on Federalism and the Supreme Court’s ruling that Congress cannot require individual States to ban sports gambling, there’s this bit at the end of the article that interests my grasshopper mind.

Supreme Court Justice Clarence Thomas, in concurring, protested the Court’s analysis of Congressional intent.

The Court also determined that PASPA’s [Professional and Amateur Sports Protection Act] prohibition on sports gambling advertising can’t be severed from the law. But as Justice Clarence Thomas noted in his pithy concurrence, the Court’s severability analysis requires courts to make “a nebulous inquiry into hypothetical congressional intent.”

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“It Does Because It Does”

Posted on 9 May 2018 by eehines

The dishonesty of Special Counsel Robert Mueller’s case against ex- and brief-Trump Campaign Manager is made manifest in the opening questions Eastern District of Virginia Federal Judge TS Ellis III and Michael Dreeben’s (arguing for the Mueller side) answers.

Ellis noted

Apparently, if I look at the indictment, none of that information has anything to do with links or coordination between the Russian government and individuals associated with the campaign of Donald Trump. That seems to me to be obvious because they all long predate any contact or any affiliation of this defendant with the campaign.

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The Special Counsel Authorizing Letter

Posted on 8 May 2018 by eehines

House investigating committees have demanded that Deputy Attorney General Rod Rosenstein turn over his letter to Special Counsel Robert Mueller, and Rosenstein has refused to do so. Now, in a case Mueller brought against ex- and brief-Trump Campaign Manager Paul Rosenstein, the presiding Federal judge TS Ellis has demanded that Mueller turn over to him an unredacted copy of that letter, and he’s given Mueller two weeks to comply, which works out to 18 May.

We’ll see. Two weeks is much too long to give Mueller to produce his copy of Rosenstein’s authorizing letter; 36-48 hours is plenty—especially since Mueller’s team plainly has that copy always ready to hand; they are, after all, responsible persons.

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A Federal Judge’s Mistakes

Posted on 28 April 2018 by eehines

US District Judge John Bates has ruled that President Donald Trump’s Executive Order rescinding the DACA program initiated by DHA memorandum under ex-President Barack Obama (D) is illegal. He’s gone beyond that: he’s ordered the Trump administration to process new DACA applicants, not just renew existing ones.

Bates’ mistakes are two. One is his ruling that, in effect, it’s illegal to rescind a Department Memorandum by Executive Order. Of course, this is erroneous. A Department Memorandum is not statute; it’s not even a Regulation. It has no legal force beyond being a Cabinet-level equivalent of an EO. As such, it’s subordinate to Executive Orders and available to cancelation by same. At worst, the issue is a quibble, easily correctable by an EO instructing the subordinate DHS to rescind its Memorandum.

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A Mistaken Argument

Posted on 27 April 2018 by eehines

The Supreme Court heard oral argument earlier this week on the legality of President Donald Trump’s Executive Order producing a moratorium on entry into the US from certain selected nations. Neal Katyal, representing those arguing to keep Trump’s EO blocked,

says Congress previously has rejected exactly the kind of nationality-based ban that Mr Trump has implemented.

Whether or not that’s true, though, is irrelevant. All that the Court can consider (aside from what is in the Constitution, which is always before the Court, and what’s in the Executive Order before the Court today), is what Congress has done this time. Past actions are irrelevant, particularly since what Congress does today that differs or outright contradicts what Congress did yesterday overrides yesterday’s action.

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The “Muslim Travel” Moratorium Case

Posted on 26 April 2018 by eehines

The Supreme Court is hearing this case as it pertains to the current Executive Order that imposes a moratorium on entry into the US by persons coming from certain specified nations. (In aside, I emphasize that calling the EO a “Muslim ban” is dishonest. It presents an impermanent moratorium on entry from nations representing a bare 10% of the world’s Muslims, and it presents the same impermanent moratorium on non-Muslim countries, like northern Korea.)

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“Special Prosecutor”

Posted on 24 April 2018 by eehines

The 9^th Circuit has appointed one to “investigate” President Donald Trump’s pardon of ex-Sheriff Joe Arpaio last summer. This was done in response to the fiction offered the court by the Perkins Coie law firm that the pardon, an explicitly named power of the President under Article II, Section 2, is somehow unconstitutional and a violation of due process.

Never mind that the due process—to the extent this…claim…is relevant to the matter of pardons—was supplied by the prior trial and conviction of Arpaio, a trial without which there would be no pardon to grant.

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