Category Archives: Courts

An Alternative Choice

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President Donald Trump (R) is considering settling his $10 billion lawsuit against the IRS over that agency’s illegal (and politically motivated, I say) leak of his tax data to the New York Times. His thought is to send the proceeds to charity.

I have an alternative thought. Require, under the terms of the settlement, the IRS to send the settlement funds to the 401(c)(3) NGOs that it had blocked from certification or whose certifications it had slow-walked. Or, require the IRS to agree to allow Trump to spread the settlement funds across those entities in the IRS’ name.

Sometimes poetic justice also is legitimate justice.

Public Keeping and Bearing

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Our Constitution’s 2nd Amendment is brief and crystal clear:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

The Supreme Court has already ruled, several times, that a well regulated militia is an outcome facilitated by individuals keeping and bearing arms, it’s not the purpose of that. The Court has further clarified that to mean shall not be infringed is nearly all-encompassing, with only a few carefully enumerated locations that can bar individuals from bringing their firearms. That short list includes locations like polling places, post offices, public-accessible private facilities like places of business that post clear signs prohibiting them on the premises. New York State Rifle & Pistol Association, Inc, et al. v Bruen is one example of this.

Hawaii wants to outlaw carrying firearms altogether, having devised and enacted a State law that bars carrying anywhere—private enterprises, even other folks’ homes—unless those places are explicitly posted permitting the carrying. As the Wall Street Journal‘s editors correctly note,

A shop could theoretically post a sign on the door—or the parking lot entrance?—saying it doesn’t object to concealed carry. But it’s easy to see why a proprietor might hesitate, since a “Pistols Welcome” banner might alienate other customers. Businesses have an incentive to accept whatever is the default.

Hence the effective ban on carrying firearms that the State is attempting. The State argues that

[a] default of no guns…fits Hawaii’s custom and “unique history,” dating to King Kamehameha III, who banned weapons in 1833.

Bruen, though, says otherwise.

[W]hen the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct, and to justify a firearm regulation the government must demonstrate that the regulation is consistent with the Nation’s historical tradition of firearm regulation.

The Nation’s historical tradition, not any particular State’s personal choice. Bruen is as crystalline as is our basic right under the 2nd Amendment. Hawaii’s statute needs to be struck down completely.

Once Again, a State Court Fails

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The Wyoming Supreme Court has struck down the State’s ban on abortion pills. Whether or not abortion pills are reasonable or safe or ought to be banned or not, the Court’s “reasoning” is deficient.

The court found that the state “failed to prove the 2023 laws were ‘reasonable and necessary restrictions’ on the right to make one’s own health care decisions.”

In so ruling, the court in the main relied on the Wyoming Constitution‘s Article 1, Section 38, which says,

a) Each competent adult shall have the right to make his or her own health care decisions. The parent, guardian or legal representative of any other natural person shall have the right to make health care decisions for that person.
(b) Any person may pay, and a health care provider may accept, direct payment for health care without imposition of penalties or fines for doing so.
(c) The legislature may determine reasonable and necessary restrictions on the rights granted under this section to protect the health and general welfare of the people or to accomplish the other purposes set forth in the Wyoming Constitution.
(d) The state of Wyoming shall act to preserve these rights from undue governmental infringement.

At that point, they stopped their thinking, though. They chose not to consider the baby’s intrinsic right to its own health—its own life. That the State’s constitution is silent on the baby’s right to life should not be allowed to free up judges, even State Supreme Court Justices, to rule as they wish. Where the law is silent on a matter, no court should be ruling on the matter since by entering that silence it is unavoidably making law in its own name, and that is the sole province of the political arms, the arms elected by the people, to do.

Justice Jo Gray implied as much when, in her dissent, she used to same Article and Section to argue the definition of “reasonable and necessary restrictions” is too vague and so the matter should have been returned to the legislature for clarification. Sadly, Gray also chose to elide any consideration of the baby’s welfare, also.

The court’s ruling can be read here.

A Simpler Solution

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As Conservatives grow increasingly concerned over activist Federal district judges overstep their authorities, even seemingly overruling Supreme Court decisions regarding nation-wide injunctions, many are proposing corrective action.

One proposed solution lies within the judiciary itself. Under the Judicial Conduct and Disability Act, the Judicial Conference of the United States may refer a judge to Congress if it determines that the judge’s conduct could warrant impeachment.

And

Another avenue for reform lies with Congress, which has clear constitutional authority to define the jurisdiction and powers of lower federal courts. Lawmakers could, for example, require cases with national implications to be heard by three-judge panels, or mandate expedited Supreme Court review of injunctions blocking federal laws or regulations.

I’m loathe to see JCUS get more active in referring to Congress for impeachment. That’s a slippery slope. What happens via an (over)active JCUS when the Progressives get activist Justices appointed to the Court?

The Supreme Court’s involvement here should begin as follows. If a district judge oversteps his bounds in the form of issuing a ruling not in conformance with a Supreme Court ruling a second time, the Court in overruling that judge’s second overstep should also rule that all future opinions which that judge issues are automatically stayed pending appellate court review.

The solution to judge-shopping is more straightforward than many think, as is the business of district judge issued national injunctions, if they might be politically difficult. Congress needs to pass and the President sign (or have his veto overridden) a law with two paragraphs. One paragraph would clarify and state explicitly that all cases, including civil, must be brought in the Federal district in which the first instance of the beef arose. If the other side of the litigation can demonstrate that the beef to which the plaintiff’s case refers actually had its first instance arise in a different district, then the plaintiff’s case would be dismissed.

The other paragraph would explicitly limit a district judge’s reach to the limits of his district boundary. District judges would be explicitly barred from issuing nationwide injunctions or any other injunction reaching beyond his district boundary. There’s no need for a three-judge panel here, nor is there any need for “expedited” review.

An Activist Judge Gets It Wrong

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DC District Senior Judge Amy Berman Jackson has ruled that

the Trump administration is legally required to secure funding for the US Consumer Financial Protection Bureau (CFPB), and that failing to do so would violate a prior court order barring the government from dismantling or shutting down the agency[.]

However.

Leave aside the fact that the question of the Trump administration funding of the Consumer Financial Protection Bureau and the question of the Trump administration dismantling or shutting down the agency are distinctly separate questions.

The fact of interest here is Jackson’s mistaken ruling that Trump must fund the CFPB. He cannot. By the statute that created the CFPB, that agency is funded solely by the penalties it exacts via its enforcement actions (pay no attention to the conflict of interest behind the curtain) and from the Federal Reserve Bank, the latter which the CFPB draws from according to CFPB-determined needs (pay no attention to the doings behind this curtain, either).

The Trump administration has no control over and no capacity to produce CFPB funding. This is the sort of shenanigan in which activist judges engage, causing increased cost and delay in cleaning up prior messes.