Tag Archives: freedom

The “Muslim Travel” Moratorium Case

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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.)

Lower courts have invoked campaign rhetoric, the clumsiness of the rollout of the first EO on the matter, a made-up permanence of the moratorium, and on and on, to create a court-manufactured policy determination that the EO was somehow prejudiced in some way.  With that fantasy, those lower courts have struck the EOs, one after another.

The lower courts have been imposing their own prejudices.

What’s in the text of the Executive Order? Is the EO itself legal? These are the only questions legitimately before the Justices. Campaign rhetoric is not in the EO, and so cannot be considered. The clumsiness of the rollout of the first EO had nothing to do with the EO—or with the one presently before the Justices—and so cannot be considered by the Justices.  The duration of the moratorium is a political decision, and so cannot be considered.

In Connecticut National Bank v Germain, the Supremes held

…time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there.

The concept plainly holds for EOs as well.  If it’s not in the EO, the EO doesn’t say it.

Whether the EO’s moratorium on entry into the US from a selected set of nations is good or bad policy is certainly worthy of debate, but it’s strictly and solely a political debate to be had by We the People, and through us, our elected representatives. Politics and associated policy decisions are beyond the ken of courts.

Foolishness of Zero Tolerance

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…or of intolerance; the two are interchangeable terms in this context.  This context is the overreaction of school management and local police departments to remarks concerning “threats” to schools.

Gina Gobert’s 12-year-old daughter was detained overnight at a police station in Oakdale, LA, after allegedly talking to schoolmates about a social-media post she said she received that threatened violence against the school.

School management, it seems, decided the girl had received no such threat and turned her over to the police, who decided to charge the child with “terrorizing.”

And this:

“You can’t joke about this stuff. It’s just unacceptable behavior in today’s world,” said Sheriff Craig DuMond in Delaware County in New York, where an 8-year-old was arrested in March on a felony charge of terroristic threat for allegedly threatening to burn down his school in Davenport, NY.

With adults, maybe.  But with children?  This is ridiculous, not least because, as minors, they are by definition incapable of making their own calls on such matters.  As a practical matter, though, they’re just too inexperienced—they literally haven’t lived long enough—to be able to form such judgments or to reason through the associated implications.  And: it’s the nature of children to push boundaries as they seek out their places in the world—and to change those places.

And this:

“If you threaten a school, you are going to be charged,” said Eric Smith, a prosecutor in Macomb County in Michigan, where 54 students have been charged in school-threat cases in the two months since Parkland, up from 17 in all of last year. “We get a lot of kids saying they were just joking, wanted attention, were acting out against bullies. Law enforcement doesn’t know if it’s real or not.”

Don’t know, therefor it’s OK to arrest them, lock them up, then do the investigation.  Guilt by accusation, guilt by dislike of what’s being said.  Jokes are no joke.

Even with adults, though, the matter is contextual; blanket bans are just the inflexibility of intolerance, and it suffocates even legitimate interactions.

My usual question, this time for school management and the police: what’s your limiting principle? Where will this naturally stop, and joking around—including dark humor joking—be successfully discriminated from actual threat?

And: is the “zero” tolerance foolish, or is it dangerous to our liberty?

Irony Meter

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Mine has been getting a workout lately.  It’s pegged again.

Russian lawmakers visited Syrian President Bashar al-Assad in the aftermath of the US-UK-French strikes on the center of al-Assad’s chemical weapons production facilities and before the Organization for the Prohibition of Chemical Weapons “inspects” the site of al-Assad’s chemical attack on women and children that prompted the allied response.  Among other things,

[t]he Syrian president also reportedly accepted an invitation to visit Siberia….

I recall an earlier time of invitations to visit Siberia.

Equal Protection Under Law

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Harmeet Dhillon, a trial lawyer and California Republican National Committeewoman, has a tweet up regarding equal protection, San Jose, CA, style:

From the 9th Circuit argument Monday morning in Hernandez v. San Jose—City attorney says SJPD should not be held responsible for forcing Trump supporters to walk through a violent mob, because attending a Trump rally is an inherently dangerous act! Did they ask for it?

Play the video, and listen especially to the exchange between the San Jose lawyer and the judge (you may have to crank up the volume to hear the judge).  San Jose is utterly disingenuous in this case.  Equal protection applies, in SJ, only to SJ-approved groups of people.

Independent Monitor

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Recall Special Counselor Robert Mueller’s raid on President Donald Trump’s personal lawyer Michael Cohen’s offices and seizure of Cohen’s records, especially targeting communications between Cohen, the lawyer, and Trump, the client.

Cohen went in to Federal court Friday to try to get the subpoena under which the raid was conducted revoked and the confiscated materials returned.  Some discussion surrounding the events centers on the alleged ability of special monitors—a “taint team”—doing the sorting so as to isolate the privileged communications from the rest of the material sought under the warrant.  Furthermore, this team would, supposedly, conduct its sort before Mueller’s team has gone into the material they seized.

I’ll elide the blatant conflict of interest here centered on the taint team’s members being, at bottom, colleagues of the those who ran the raid and of Mueller: they’re FBI agents and DoJ lawyers.

I’m interested in a larger question that’s not being addressed.  Say Cohen wins his case and the subpoena is quashed and the seized materials returned to him in toto.  On what basis do we conclude that Mueller’s team hasn’t already copied all of those seized materials and separated the copies from the originals?  That by itself, incidentally, would be a good practice with legitimately confiscated materials; reviewing the copies would ensure against accidentally damaging the originals and thereby destroying their legal provenance (as well as their utility for their rightful owners).  On what basis do we conclude that, on Cohen’s victory, those copies would be returned, also?  On what basis do we conclude that Mueller’s team isn’t already reading and evaluating those copies of the seized materials?