Category Archives: Courts

It’s Bad

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…when the court pokes fun at a case.

In Bayou Lawn, et al., v Department of Labor, Bayou Lawn, the Chamber Of Commerce of the United States of America, the National Hispanic Landscape Alliance, the Silvicultural Management Associates, Inc., and the Professional Landcare Network, among others, objected to a number of wage rules and bureaucratic requirements related to the H-2B visa program that had been promulgated by DoL.  Among other things, these groups doubted DoL’s authority even to write such rules.

Nor were DoL’s rules insubstantial:

These rules would decrease the maximum number of months an employer may employ an H-2B worker from ten to nine; require employers to guarantee that H-2B employees will work at least seventy-five percent of the hours certified in any twelve-week period and, if not, pay the employees the difference for the time not worked; require employers to pay non H-2B workers’ wages and benefits at least equal to those paid to H-2B workers if the two perform “substantially the same work;” require employers to pay for the round-trip airfare and subsistence costs of H-2B workers; and impose additional bureaucratic requirements, such as the filing of job orders, performing extensive domestic recruitment, and applying for a temporary labor certification.

A Federal court in Florida agreed and enjoined DoL from enforcing its rules.  DoL appealed, even while conceding that it had no actual authority for promulgating these rules [emphasis in the original]:

The DOL does not dispute that it has no express authority to make rules for the H-2B program.

Rather, DoL argued in all seriousness,

DOL counters that its authority may be inferred from the “statutory scheme [that] shows a Congressional intention to grant [it] rulemaking power.”

And here is the scheme that DoL argued [emphasis still in the original]:

[Federal law] instructs the Secretary of DHS to consult with the “appropriate agencies of the Government” in resolving whether to grant a foreign worker a visa upon the “petition of the importing employer.”  Although there is no grant of rulemaking authority to DOL in this statutory section, DOL asserts that as the result of the permission it grants to DHS to consult with it, DOL “has authority to issue legislative rules to structure its consultation with DHS.”  The end result, in DOL’s view, is that it is empowered to engage in rulemaking, even without the DHS.

The 11th Circuit thought this pseudo-reasoning…foolish.

We reject this interpretation of “consultation.”  Under this theory of consultation, any federal employee with whom the Secretary of DHS deigns to consult would then have the “authority to issue legislative rules to structure [his] consultation with DHS.”  This is an absurd reading of the statute and we decline to adopt it.
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DOL was designated a consultant.  It cannot bootstrap that supporting role into a co-equal one.
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DOL next argues that the “text, structure and object” of the INA evidence a congressional intent that DOL should exercise rulemaking authority over the H-2B program. This would be a more appealing argument if Congress had not expressly delegated that authority to a different agency.

And so on.

Just what is the competence level in this administration?

The 11th‘s ruling can be read here and here.

 

h/t Law Blog

The Supreme Court and Prop 8

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In California, the people—right, wrong, or indifferent—have spoken.  What the Supreme Court needs to think about as it considers California’s Proposition 8, which bans gay marriage in that state, is whether the people are sovereign or the Court presumes to be.

Justice Anthony Kennedy, in questioning lawyers defending the Proposition, pointed out that the children of gay parents have voices that ought to be heard.  And so they should.  When they’re adults, those 40,000 children (compared with the 10 million, or so, adult Californians who already have spoken in that referendum) can spearhead a new Proposition that would reverse Prop 8.  The people, after all, can change their minds.  That’s also easier to accomplish than getting the Supreme Court to reverse itself, even on an opinion with which they’ve interfered with the 10th Amendment.

Justice Sonia Sotomayor, also questioning lawyers defending Prop 8, asked why California had an interest in denying gay couples the right to marry.   But this is to misunderstand the role of the Federal government in a Republic whose social compact has a 10th Amendment.  The Federal government—and so the Supreme Court as the pinnacle of a branch of that government—has no interest in why a state wants to do a thing, a thing that does no harm to its neighboring states or to the United States, within its own borders.

The only legitimate ruling for the Court is to let the people’s decision stand.  And leave California, in competition with those other states whose citizens have determined otherwise, to live with the consequences of its choice.  That’s simply an application of Saul Alinsky’s Rule 4.

This is Backwards

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Here’s another case of government’s men who should know better, not knowing.

From the New Jersey Law Journal comes a description of a court considering the (mis)use of one law to feed the impact of another.  Sorry about the paywall; here’s a summary [emphasis added].

COURT TO DECIDE IF SEAT BELT LAPSE CAN SUPPORT A CRIMINAL CONVICTION The New Jersey Supreme Court has agreed to decide whether violation of the 1984 law that made seat belt wearing mandatory can support a criminal conviction under another statute.  To be reviewed is an appeals court holding that not wearing a seat belt can be a predicate offense for N.J.S.A. 2C:40-18, which criminalizes “knowingly violat[ing] a law intended to protect the public health and safety” through reckless conduct that injures another.  In State v. Lenihan, A-4667-10, the Appellate Division found the statute’s language gives no indication the Legislature would object to how it is being applied in this case, where the unbelted driver’s passenger was killed.

Leaving aside the question of how far a court—or any other government branch—should reach in order to criminalize an activity, giving no indication of objection is not the same as positively approving.

The principle embedded in our Federal Constitution in the 9th and 10th Amendments is this: negatively, enumeration in the Constitution does not limit or deny the not-enumerated to the people, and positively, powers not delegated to the United States are, in their remaining infinite entirety, left wholly to the States and to the people.  Moreover, these Amendments are to a Constitution that was written by We the People—an acknowledgment of the sovereignty of the members of our social compact over the government we members, we citizens, hire to administer and to protect our rights.

If that principle is valid, though, it’s valid everywhere.  The citizens of each State of these United States are sovereign over each of their State governments, also.  Hence, here, too, positive action must be taken to proscribe a thing.  Absent active proscription, that thing must remain within the province of the individual, either acting alone or in concert with (some of) his fellows, to do or not do.

Thus, unless the New Jersey (or any other State) legislature definitively states, in the present case for instance, that not using a seat belt criminalizes other behavior under other law, it cannot be so used by a court.

Another Victory over Big Government

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Here’s the long and the short of it, as summarized in The Wall Street Journal:

A federal judge this week struck down a controversial set of laws allowing the Federal Bureau of Investigation to seek people’s records without a court’s approval, saying the strict secrecy orders demanded by the laws are not constitutional.

US District Judge Susan Illston (Northern District of California) ordered the government to stop sending national security letters or to stop trying to enforce gag orders related to them, but she stayed her order pending the government’s appeal.

Of course, it’ll go to the 9th Circuit, which means it will go on to the Supreme Court, so the fight isn’t over.  But this is an excellent start.

Illston’s opinion decried these violations of Americans’ individual freedom:

[The] pervasive use of nondisclosure orders…creates too large a danger that speech is being unnecessarily restricted.

She added [emphasis added]:

[T]he statute impermissibly attempts to circumscribe a court’s ability to review the necessity of nondisclosure orders.  …the NSL nondisclosure provisions significantly infringe on speech regarding controversial government powers.  …  As written, the statute expressly limits a court’s powers to modify or set aside a nondisclosure order to [certain] situations….  The statute’s intent…is incompatible with the court’s duty to searchingly test restrictions on speech.

There are two problems with these letters.  One is that they allow searches without a court’s warrant.  The FBI can use them to search for phone data and for financial and electronic records, and all the FBI agent needs is his Field Office Special Agent in Charge to say it’s all jake.  This is a clear violation of our 4th Amendment.

The other problem worsens this exponentially: the FBI can require (or could before Illston’s ruling) the recipient of the letter to keep quiet about his receipt—denying the owner of the records any opportunity to respond to the search before it happens.  This also denies two critical aspects of the 1st Amendment: that right to speak of receipt and the duty of a court to adjudicate any allegation of a 1st Amendment violation.

Illston’s ruling can be read here.

Another Victory for the 1st Amendment

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AP is reporting it.

US District Judge Lawrence Zatkoff granted a preliminary injunction against enforcement of the contraception provision of the law against Tom Monaghan and Domino’s Farms Corp, a management company located near Ann Arbor, MI.

HHS had argued from the outset that its contraceptive rule was not an infringement on Monaghan’s religious freedom.  HHS continued, additionally, to elide the other religious freedom clause in the 1st Amendment—that minor bit about government not being able to interfere with the free exercise of religion.  Zatkoff waved the BS flag at all of that.

Plaintiffs’ constitutional right to freely exercise religion is at issue in this case. It is in the best interest of the public that Monaghan not be compelled to act in conflict with his religious beliefs.

And

Finally, the Court must balance the harm to Plaintiffs if the injunction is denied with the harm to the Government if the injunction is granted.
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As discussed above, denying Plaintiffs’ motion will result in a substantial burden on Monaghan’s

right to free exercise of religion, since the mandate requires him to choose whether to comply and violate his beliefs, or accept the financial consequences of not doing so.  And, as noted, such an infringement upon Plaintiffs’ First Amendment rights—even if for a short time—constitutes irreparable injury.
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The Government will suffer some, but comparatively minimal harm if the injunction is granted.

It really is that simple.

Nevertheless, the government made its argument.  The health care law and HHS’ rule, they insisted,

are narrowly tailored to serve two compelling government interests: improving the health of women and children, and equalizing the provision of preventive care for women and men so that women who choose to can be a part of the workforce on an equal playing field with men.

The fact is, though, this cynical argument doesn’t hold water.  In the first place, contraceptives are not health care, except to the extent that some religious groups argue that contraceptives run counter to children’s health by preventing their existence in the first place.

Additionally, the availability of contraceptives at others’ expense has nothing to do with “equal playing fields.”  Further, non-market oriented coverage, barring risk-based premiums, or violating religious freedom have nothing to do with “equal playing fields” from individual Americans’ perspective.

However, any government intrusion into the religious freedoms of individual Americans has everything to do with “equal playing fields” by tilting those fields toward government-favored groups.  Any government intrusion into a free market—including into the insurance (risk transfer for a fee) industry—has everything to do with “equal playing fields” by tilting the fields toward government-favored groups.

Zatkoff’s ruling can be read here.  Easter came early last week.