Category Archives: Courts

A First Amendment Beef

Posted on by
Reply

This one, I think, is a bad beef.  A Columbia University club known as the Knight First Amendment Institute, styling themselves a First Amendment advocate organization, has taken notice of the fact that President Donald Trump has blocked some folks from his personal twitter account, @realDonaldTrump, an account he’s had since well before the campaign and his election.  The Director of the Institute, Jameel Jaffer, wrote a letter to “the Trump administration” claiming that the Constitution “requires” those accounts to be unblocked.

Users who have been blocked cannot follow you on Twitter, and they are limited in their ability to view your tweets, find your tweets using Twitter’s search function, and learn which accounts follow you….  Blocking users from your Twitter account violates the First Amendment. When the government makes a space available to the public at large for the purpose of expressive activity, it creates a public forum from which it may not constitutionally exclude individuals on the basis of viewpoint. This is true even if the space in question is “metaphysical” rather than physical.

What Jaffer is ignoring, among other things, is that the government did not create the @realDOnaldTrump account; private citizen Donald Trump did.  The government created the @POTUS and @WhiteHouse accounts.

The President’s personal twitter account is not the same thing as @POTUS or @WhiteHouse, which are public forums created by the White House some administrations ago specifically for the purpose of passing out White House announcements and, perhaps, exchanging views.

So what do we have?  This is what the 1st Amendment says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

None of that applies here.  Trump’s blocking some folks from his personal twitter feed has nothing at all to do with religion, nor does it restrict the press—NLMSM or legitimate—at all.  Even the use of social media as press—this blog, for instance, or established press’ and pressmen’s own Facebook pages, twitter feeds, Instagram setups, etc are not restricted in the slightest.

That leaves the question of free speech, peaceful assembly, and petitioning of the Government.

None of these are impacted by blocking some twitterers from a private account, either.  Those folks still have unfettered access to the government via the @POTUS and @WhiteHouse accounts: they still can engage in free speech activities with the administration and with Trump; they still can peacefully assemble, even if that assembly is “metaphysical,” and they still can fully petition the Government.  And that’s just through the government’s twitter feeds.  These folks also have access via the White House’s Facebook page, email even via old-fashioned snail mail.

This is just some folks with more time on their hands than productive activities along with their rent-seeking lawyers manufacturing another excuse to whine.

Constituents

Posted on by
Reply

Who are a Federal judge’s—at any level of the judicial hierarchy—constituents?  I asked this question of a number of folks, and the most cogent answer I got was this: “in order, the law and justice.”  Even that answer, though, is only about one-third right IMNSHO.

Here is the first oath of office Federal judge and Justice must take; it’s the same as any Congressman must take.

I, [name], do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.

Here is the additional oath of office that a Federal judge or Justice must take.  Notice that his prior oath does not expire (no oath can); this oath adds to it.

I, [name], do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as [judicial position] under the Constitution and laws of the United States. So help me God.

Here is what Article I, Section 1 of our Constitution says about legislative authority.

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Thus, a Federal judge’s constituency begins and ends with the Constitution.  Full stop.  His constituency does not extend to “the law,” only to the supreme Law of the Land.  All other law, which can be enacted only by the people’s elected representatives in the legislative and executive branches under our system of governance, must be subordinate to and compatible with the Constitution.  A judge’s duty here is to reject a law that is not compatible, that is unconstitutional.  Or on its constitutionality, to apply it as it’s written.  His oaths of office demand he defend the Constitution, and that defense enjoins him to not write law, not modify law, only to apply it.  To this end, a judge’s interpretation of a law is only for the purpose of applying it as written, not to “interpret” it to his convenient end.

Not “justice,” either.  What is justice, what is just, are social and political determinations, and those determinations, too, can be made only by We the People, directly or through those elected representatives of ours.  A judge can only apply the law before him as it is written (or strike it); he cannot judge a case according to his own sense of justice or social mores.  He certainly can rail against the injustice (from his sense of it) of a ruling to which the law before him drives him—and he should—but he can rule in no other way but what the law itself requires.

This makes especially reprehensible the 4th Circuit’s ruling on President Donald Trump’s immigration Executive Order.

It is therefore difficult to avoid the conclusion that the Fourth Circuit and the other courts that have stayed Mr Trump’s executive orders on immigration are engaged in the judicial equivalent of the “resistance” to his presidency. Judges are, in effect, punishing the American electorate for having chosen the wrong president. That is not the judiciary’s role. Every federal judge has an obligation to accept the limitations imposed by the Constitution on his power—to exercise “neither force nor will, but merely judgment,” as Hamilton put it in Federalist No 78.

Mandatory Minimum Sentencing

Posted on by
Reply

Heather Mac Donald, in an opinion piece in a recent Wall Street Journal argued that Attorney General Jeff Sessions is getting a bad rap over his decision to reinstate emphasis on mandatory minimum sentencing and that those minimum sentencing requirements themselves get a bad rap.  She’s right on both counts.

Sessions is being smeared as being a racist over his decision because most of the criminals impacted are black—never minding that most of the crimes involved are committed by blacks, and against blacks to boot (another part that’s carefully elided by the smearers).  The sentencing guidelines (for that’s all that they are; they are not mandatory, for all that timid trial and appellate judges make them so out of their loathe to sentence based on the actual circumstances out of rank fear that they might get overruled by a higher court) also get a bad rap because Sessions’ decision is aimed at serious and violent crime commissions, not the small fry.  The ones aimed at with Sessions’ ruling are the drug dealers, murderers (acknowledging the considerable overlap between the two), assaulters, home invaders, and the like.  Not at risk from minimum sentencing “requirements” are the non-violent, the petty, the drug users, and so one.

As Mac Donald put it in defense of minimum sentence requirements,

Mandatory minimum sentences are a valuable tool for inducing drug dealers to cooperate with prosecutors in identifying fellow members of large drug-trafficking networks.

One small aside on that: mandatory minimum sentences also are valuable tools by prosecutors for intimidating an unconvicted defendant into plea-bargaining independently of his guilt or innocence.  Both sides of this question are supported only by extensive anecdotes, though, not demonstrated trends.

For all that, say Mac Donald is right on her main point.

But her point is irrelevant.  Mandatory minimum sentences are wrong on their face.  Sentences should be handed up by juries, not by judges or by sentencing checklists in a computer.  If I beat my wife and sell drugs to a friend a few blocks away, I’m committing crimes against our two neighborhoods—mine and my wife’s and that of my friend’s—not against New York City or Washington State, or even my home State of Texas.

My crimes are against the local communities in which my friend and my wife and I live, and I should be sentenced like I’m tried: by a jury of my peers drawn from my community and my friend’s, the communities against which my crimes were committed, i.e., the district wherein the crime shall have been committed.

Sentencing requirements, whether mandatory or guideline, destroy that capacity, they destroy the local community’s ability to decide for itself what is the appropriate punishment to be meted out for any crimes committed against it.

Briefly

Posted on by
Reply

President Trump has promised to roll back the regulatory state, but he’ll need the help of a judiciary that has for decades deferred too eagerly to executive agencies.

Indeed.  As the WSJ op-ed at the link says, that’ll require the judiciary to recognize its role in the Federal government and, in particular, its position in the hierarchy.

The proximate matter here is a DC Circuit ruling in US Telecom Association v Federal Communications Commission which used the Chevron Deference doctrine (which holds that the Court should be spring-loaded to uphold an Executive Branch agency rule rather than considering its constitutionality—its legitimacy—de novo on its merits) to find for the FCC.  Judge Brett Kavanaugh dissented, and he based his dissent in large part on decrying that deference doctrine.  The WSJ asked

Perhaps the High Court will accept his invitation to revisit a doctrine [Chevron Deference] that has long been abused.

But the existence of the doctrine is the abuse, not that the doctrine gets abused. The Constitution made the judiciary a coequal branch of the Federal government, not a deferential one.

Full stop.

Law and Trump’s EO Regarding Travel Delays

Posted on by
Reply

The 4th Circuit Appellate Court is hearing the Trump administration’s appeal of Hawaii and Maryland Federal trial judges’ preliminary injunctions blocking implementation of the President Donald Trump’s second Executive Order imposing a temporary travel delay of its own on persons from six Middle East nations from entering the United States (with provisions for case-by-case exceptions).  Even though Hawaii is in the 9th Circuit and not the 4th, I’m using the Hawaii ruling as my example here since the Maryland ruling is substantially the same, the Hawaii ruling is more readily available, and I’m lazy.

Judge Derrick Watson’s Hawaii ruling can be read here, and from that ruling…[emphasis added]

Because a reasonable, objective observer—enlightened by the specific historical context, contemporaneous public statements, and specific sequence of events leading to its issuance—would conclude that the Executive Order was issued with a purpose to disfavor a particular religion, in spite of its stated, religiously-neutral purpose….

No truly reasonable, objective observer would read any of that into the EO’s stated, religiously-neutral purpose because no truly reasonable, objective observer would go beyond the plain meaning of the words to seek clearer understanding of them unless those words, as present, were unclear.  The word here are plainly clear; outside words are less than irrelevant; their importation here is inappropriate.  Judges must apply the law (here, the EO) as it is written and not in accordance with their personal moral precepts.  To do the latter is a blatant violation of their oaths of office.

To determine whether the Executive Order runs afoul of that command [the Establishment Clause], the Court is guided by the three-part test for Establishment Clause claims set forth in Lemon v Kurtzman….

The applicability of the Lemon test is nonexistent because the Establishment Clause is irrelevant to this case.  Aside from the fact that the EO, by design and declaration, has no religion-related purpose, the EO applies solely and strictly to foreign nationals who are outside the US.  That means they also are outside the United States’ jurisdiction.  That means the Constitution and its tenets and requirements do not apply to those foreign nationals.

For the court to assert that our Constitution reaches beyond our borders, for this court to claim our government has jurisdiction over persons (and by extension, to nations?) outside our borders runs contrary to our nation’s policies, contrary to international law, contrary to the very principles of what it means to be a citizen of a nation—especially for those persons who are citizens of a nation other than our own.

The 4th Circuit should overrule.