“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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It Still Is

Posted on 20 April 2018 by eehines

The Supreme Court is hearing a case, South Dakota v Wayfair Inc, wherein South Dakota is looking to overturn a generation-old ruling that exempts out of state retailers from State sales taxes unless the retailers also have a physical presence in the State. I wrote about one aspect of the matter here among other places.

Here’s another, more critical aspect of the matter [emphasis added].

In a 1992 mail-order catalog case [Quill Corp v North Dakota], the court held that, absent congressional approval, states could impose tax-collection duties only on retailers with a “physical presence” within their borders. Congress, with its constitutional power to regulate interstate commerce, was the place to balance state revenue needs with burdens on business, the court said at the time.

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State Taxation of Internet Businesses

Posted on 17 April 2018 by eehines

The Supreme Court is hearing a case, South Dakota v Wayfair Inc, that seeks to overturn an older precedent that prevents States from taxing businesses doing business in the State that don’t have a physical presence there. South Dakota is claiming that

…the 1992 precedent harms state treasuries and disadvantages taxpaying home-grown businesses.

That argument might hold water if the States were powerless. They’re not. There’s nothing at all preventing them from lowering the tax rates they impose on the brick-and-mortar and home-grown businesses resident in those States so they can compete. There’s nothing at all preventing the States from lowering their spending rates and thereby protecting their treasuries.

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A Better Answer

Posted on 25 March 2018 by eehines

The Supreme Court might take up a case involving cy pres, the policy of handing class action suit settlement fund “leftover” money to third parties. It’s especially used where the number of plaintiffs in the class is huge.

In privacy or data-breach cases, where the number of potential plaintiffs reaches into the millions, the majority of a settlement can go to cy pres recipients.

A 2015 class-action settlement involving Alphabet that centered on its Google subsidiary would have led, after the lawyers’ cut, to four-cent checks being sent to each of nearly 130 million plaintiffs, for instance.

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A District Judge Gets One Right

Posted on 9 March 2018 by eehines

Senior Federal District Court Judge for the District of Maryland Roger Titus has ruled that President Donald Trump’s wind-down of DACA was entirely legal and proper. While that’s an outcome agreeable to me, my interest is in his reasoning for upholding Trump’s withdrawal of the Obama DHS Memorandum creating DACA.

As disheartening or inappropriate as the president’s occasionally disparaging remarks may be, they are not relevant to the larger issues governing the DACA rescission. The DACA Rescission Memo is clear as to its purpose and reasoning, and its decision is rationally supported by the administrative record.

And

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A Hong Kong Trial

Posted on 9 February 2018 by eehines

Some of you may recall the umbrella protests in Hong Kong a few short years ago concerning the rapid erosion of freedoms there as the People’s Republic of China accelerated its walk away from its promise to Great Britain to respect Hong Kong liberties after the island city was surrendered to the PRC.

Joshua Wong, one of those protesters, sentenced to jail for participating and speaking his mind, is out of jail pending his appeal. Hong Kong Commissioner Clement Leung had a Letter to the Editor of The Wall Street Journal earlier this week objecting to a WSJ piece decrying the whole sorry charade that is the current Hong Kong judiciary.

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Another Biased Federal Judge

Posted on 1 February 2018 by eehines

US District Judge Nicholas Garaufis, of the Eastern District of New York, blatantly and zealously does not like President Donald Trump, as many folks do not. However, the judge is hearing a case concerning whether to block Trump’s withdrawal of ex-President Barack Obama’s (D) unconstitutionally applied DACA protections, and that overt bias may well feed into his ruling on what should be an open and shut question: the DACA protections were illegally applied, and apart from that, they were applied by DHS Memorandum, and so even were Obama’s DACA legal, the protections can be removed by Memorandum or by a President’s Executive Order.

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The Supreme Court Gets One Wrong…Maybe

Posted on 29 January 2018 by eehines

A murderous felon in Alabama was, on conviction in 1994, sentenced to life in prison by his jury, and that sentence was overridden by the presiding judge, who ordered his execution. The man was scheduled to be executed Thursday, but the Supreme Court has stayed the execution pending its decision on whether to hear the man’s appeal of his execution.

The stay is consistent with the Court’s prior rulings striking State laws that allow judges to overrule juries and to impose death sentences where the juries decided otherwise. In this regard, I agree: the jury is the proper sentencer where a man’s life is in the balance.

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Congressional Districts and Gerrymandering

Posted on 12 January 2018 by eehines

North Carolina’s Congressional districts are illegally drawn, says a special three-judge court.

A special three-judge court invalidated the North Carolina map after finding Republicans adopted it for the driving purpose of magnifying the party’s political power beyond its share of the electorate.

I’ll leave aside the disparate impact sewage that local districts must reflect the larger State’s electorate “demographics.” The larger problem is with the underlying premise of gerrymandering: that some groups of Americans need their political power enhanced relative to other groups of Americans because some groups are, in some sense, fewer in numbers than other groups.

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A Federal Judge Has Overstepped

Posted on 11 January 2018 by eehines

DACA was implemented by Department of Homeland Security memorandum—not even through Rule Making—and it can be removed by the same process or by Executive Order. There is no legislation being ignored or abused here; this is purely and solely an internal Executive Branch affair. Alsup is nakedly insinuating himself in what is only—can only be—a political matter and not a judicial one in a blatant violation of Constitutional separation of powers.

Even ex-Progressive-Democratic President Barack Obama (D) confessed he had no Constitutional authority to order the things DACA orders—before he had his DHS Secretary issue her memorandum.

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