Category Archives: Courts

An Immigration Case and Legislation

Posted on by
Reply

The Supreme Court is heard oral arguments on US v Sineneng-Smith last Tuesday. The case involves the convictions of a woman mail fraud and inducing illegal immigration. The woman billed illegal immigrants $6,800 to file paperwork for an expired pathway to legal residence.  Two of her victims has also testified that, but for the woman’s efforts and billings, they would have left the US otherwise.  That last formed the basis of the woman’s conviction of inducing illegal immigration.

The 9th Circuit struck the second conviction, holding the law unconstitutionally overbroad in violation of the First Amendment.

In the course of those oral arguments, came this item of primary interest, at least to me:

Justice Stephen Breyer noodled the idea of narrowing the law so “it is limited to solicitation of a crime.”

That may or may not be a useful thing to do, but it’s for the political branches of our Federal government to legislate, not for the judicial branch. Leave it to a…liberal…Justice to think it’s OK to modify a law from the bench.

In Which a Supreme Court Justice is Wrong

Posted on by
Reply

Supreme Court Justice Sonya Sotomayor didn’t just get it wrong in her dissent, she is wrong.

In Wolf v Cook County, the Supreme Court upheld the Trump administration’s expansion of its public charge rule regarding immigrant visas to include a bar on

non-cash benefits such as the Supplemental Nutrition Assistance Program (SNAP), forms of Medicaid, and certain housing assistance….

Sotomayor opened her dissent from the Court’s decision with this:

Today’s decision follows a now-familiar pattern. The Government seeks emergency relief from this Court, asking it to grant a stay where two lower courts have not. The Government insists—even though review in a court of appeals is imminent—that it will suffer irreparable harm if this Court does not grant a stay. And the Court yields.

Lower courts said it two times—it must be true. Lower courts have already said it. The superior court is obliged, somehow, to accede to its subordinates.

Besides: a court of appeals (the 7th Circuit) is going to hear oral argument this week as I write. Oral argument. Not review the written submissions, much less rule; that usually comes some indeterminate amount of time, usually measured in weeks, later. Especially if lower courts, like Sotomayor here, don’t see the matter as the emergency that the government avers.

She went on:

But this application is perhaps even more concerning than past ones. Just weeks ago, this Court granted a stay of a different decision involving the same administrative rule at issue here, after the Government professed urgency because of the form of relief granted in the prior case—a nationwide injunction.

This is fractured logic, and Sotomayor knows better. The Court objected to the nationwide aspect of that district court ruling because that lower court badly overstepped its bounds. And having lifted the nationwide injunction, the Court had no reason to reach the emergency aspect of the situation.

And this:

The Government’s professed harm, therefore, boils down to an inability to enforce its immigration goals, possibly in only the immediate term, in one of 50 States. It is hard to say what is more troubling: that the Government would seek this extraordinary relief seemingly as a matter of course, or that the Court would grant it.

Because the government should not—of course!—be allowed to enforce its immigration goals. And because unless the harm isn’t nationwide, can the harm only be limited to a single State in our Union, the harm doesn’t matter. Never mind that much of the cost on not enforcing in the one State, Illinois, will be borne by that one State—and Illinois is, by many definitions, bankrupt already.

And now Sotomayor’s arrogant self-importance begins to be revealed:

…even putting aside the dissent of four Justices in the New York cases and the plaintiffs’ weighty arguments on the merits….

The Liberal minority disagreed. And her prejudgment of the matter: the plaintiffs’ weighty arguments on the merits.

And Sotomayor closed with this [citations omitted]:

…most troublingly, the Court’s recent behavior on stay applications has benefited one litigant over all others. This Court often permits executions—where the risk of irreparable harm is the loss of life—to proceed, justifying many of those decisions on purported failures “to raise any potentially meritorious claims in a timely manner.” … Yet the Court’s concerns over quick decisions wither when prodded by the Government in far less compelling circumstances—where the Government itself chose to wait to seek relief, and where its claimed harm is continuation of a 20-year status quo in one State. I fear that this disparity in treatment erodes the fair and balanced decision-making process that this Court must strive to protect.

Never mind the non sequitur nature of her analogy. The execution cases that the Court has declined to (further) stay are cases that have been appealed repeatedly and on successively flimsier grounds (for the most part). They’ve already been extensively adjudicated, and further delay would at best be unnecessary—that ground having already been plowed lots of times—and would border on violation of the 8th Amendment.

On the other hand, the harm done by 20 years of too narrow (as now realized) enforcement of the public charge rule would be extended by not lifting injunctions against its enforcement pending final adjudication.

But her position is of a piece with her claim to personal superiority.

I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.

It’s hard for her bias to get any more blatant.

Finally,

I respectfully dissent.

There’s nothing respectful about her dissent; she attacked her fellow jurists’ integrity and morality, and she insulted the intelligence of all of us.

The Supreme Court’s stay of the Cook County case and Sotomayor’s dissent can be seen here.

A Court Missed

Posted on by
Reply

This time, the DC Circuit Court has erred.  The Trump administration—Health and Human Services—had allowed Arkansas, among other States, to set work requirements on its citizens as prerequisites to eligibility for the State’s Medicaid program. Folks and organizations sued over that, and the case wound up in the DC Circuit Court.  That Court held with the suers and has blocked Arkansas from proceeding with the work requirements.

Writing for the Court, Senior Circuit Judge David Sentelle held, in part, that HHS didn’t address the purpose of Medicaid in a way that suited him:

to provide health care coverage to populations that otherwise could not afford it….

Sentelle wrote further,

The means that Congress selected to achieve the objectives of Medicaid was to provide health care coverage to populations that otherwise could not afford it.
To an extent, Arkansas and the government characterize the Secretary’s approval letter [allowing Arkansas’ work requirements] as also identifying transitioning beneficiaries away from governmental benefits through financial independence or commercial coverage as an objective promoted by Arkansas Works.

Sentelle then wrote that Azar’s approval letter did not discuss this aspect of the matter, either. That, though, is because it’s so blindingly obvious that explicitly writing, in effect, “this, too,” would have been merely redundant.

Of course, HHS did properly account for the principal purpose. Requiring efforts to work or to learn work skills directly accounts for Medicaid’s principal purpose, by helping folks become able to afford health-care coverage and so no longer be part of those “populations that otherwise could not afford it.”

The ruling needs to be appealed to the Supreme Court, and the Supremes need to uphold HHS’ requirement.

The DC Circuit messed up.

 

The Court’s ruling can be read here (maybe. The Circuit’s Web page is having trouble with this. The Case is Charles Gresham v. Alex Azar, II, Docket 19-5094).

Progressive-Democrats and Litmus Tests

Posted on by
Reply

The Progressive-Democratic Party and its Presidential candidates continue to be…upset…over judicial confirmations that are going on with the Trump administration and the McConnell Senate. And they have issue-based litmus tests for what they consider acceptable (progressively so) judges and Justices. The test is in addition to their wish to change the structure of the Supreme Court to favor their ideology.

Their tests are these: the nominees must overtly favor abortion, be activists regarding the environment, and positively consider labor union matters.

Never mind that judges cannot legitimately consider these things except from within the confines of the text of our Constitution and the statute before them in any particular case. Otherwise, those matters are political items that must be determined by the political branches of our government and by Government’s employer and boss, We the People.

More: the candidates refuse to provide the lists from which they’d nominate their favored judges and Justices. They seem to lack the integrity and moral courage to do so.

In contrast, then-Presidential candidate Donald Trump published his list of judges and lawyers from which he’d draw his Justice nominees, and President Trump has drawn his Justice—and appellate court—nominees from that list.

Just to saucer and blow the matter, here’s my litmus test for judge and Justice nominees; it’s both simple and general:

  • Will you rule strictly on the basis of the text of our Constitution and of the statute before you, or will you rule on your current interpretation of what it should say?
  • Do you believe our Constitution lives through judicial rulings or that it lives through Article V and We the People?

It’s clear that Progressive-Democrats’ nominees—named or secret—would fail that litmus test.

Data Transfer and Privacy

Posted on by
Reply

The European Union’s Court of Justice had recommended to it by an adviser to the court in a particular case involving Facebook that

Companies, including US tech giants, should be blocked from transferring European users’ data in some cases if they can’t guarantee it will be handled in compliance with European Union privacy laws….

That would seem to include a large number of international companies besides ours. Yet several EU member nations are moving apace to bring Huawei into their communications networks….

Hmm….