Category Archives: Courts

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.

Activist Investor Lawsuits

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Comerica, a regional commercial bank, has agreed to be acquired by Fifth Third Bank, a bank holding company, and HoldCo Asset Management, a serial “agitator” and a minority shareholder of Comerica, doesn’t like that decision and has gone into court to stop it.

It turns out HoldCo Asset Management didn’t like that particular deal [Comerica being acquired by Fifth Third Bancorp], arguing it undervalued Comerica. Its battle with the bank has since turned into an all-out war. The firm urged shareholders to vote against Fifth Third Bancorp’s acquisition of Comerica and sued the banks, saying it wasn’t the best option for shareholders.

The lawsuit strikes me as being entirely frivolous and motivated even more by HoldCo’s arrogance than by its greed. The value of any good or service, here the value of Comerica, is not for any third party to dictate to the participants of any exchange, here the acquisition of Comerica by Fifth Third Bank. The value of the exchange is solely what the participants, the shareholders of each of the two banks, say it is.

The two banks’ boards have agreed the deal and are recommending it to their respective shareholders (read: owners and bosses); although, the haven’t yet voted on it. It’s true enough that HoldCo is one of those shareholders, but the shareholders in their aggregate will assign with their votes the value they deem appropriate.

Minority shareholders should not be allowed to impose their minority position on the majority of a company’s shareholders. If they lose the debate over a company’s acquisition or over any other move made or proposed by the company—if the majority of shareholders at each of the two banks vote for the deal—then HoldCo’s only two legitimate recourses are to accept the outcome or sell their shares.

It’s a matter of property rights, here the rights of shareholders in their property of the shares they own of a company.

Lawsuits centered on a minority’s dislike of a company decision or proposed decision should be dismissed for lack of standing or lack of concrete harm.

Full stop.

Tension?

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The Supreme Court has taken up the question of whether Louisiana’s redistricting effort for its Federal Congressional representation is legitimate, or not. The Just the News‘ news writer, the unusually (for JtN) anonymous “Just the News Contributor,” posed the central question before the Supreme Court:

In Louisiana v Callais, the Supreme Court is confronted with a direct tension between two legal commands: the VRA’s mandate to protect minority voting rights and the Constitution’s limits on race-based decision-making by the state.

There is—or should be—no tension here. Our Constitution says this in Art VI:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land….

In Marbury v Madison, the Supreme Court made clear that conflicts between statute and Constitution must be resolved strictly and solely in favor of what our Constitution says, and every Supreme Court decision since has hewed to the ultimate supremacy of our Constitution. Any tension can exist only in the minds of activists and activist judges and Justices.

Nor can there be any half-measure wherein some level of race-based discrimination is OK. Any race-based discrimination or “preference” in political gerrymandering is too much and a violation of our Constitution. Here’s the 14th Amendment on the matter:

No State shall…deny to any person within its jurisdiction the equal protection of the laws.

The clause does not say No State shall…deny to any person within its jurisdiction the equal protection of the laws, except when it’s convenient to do otherwise.

Full stop.

The Judge Erred Badly

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A Minnesota jury convicted a man and his wife of stealing $7.2 million from the state’s Medicaid program. After the jury rendered its verdict, Minnesota State District Judge (4th District) Sarah West overturned it in its entirety.

In her decision, West wrote that prosecutors “relied heavily on circumstantial evidence,” adding that the state didn’t rule out other potential “reasonable inferences.”

If West really thought that, why did she let the case go to the jury and then let the jury reach its verdict and then read out that verdict?

If West really thought that, why didn’t she, when both sides had rested their cases—or even just when the prosecutor had rested—simply issue a directed verdict of not guilty instead of wasting so much time? Those jurors were private citizens with day jobs, after all. Her claim of other “reasonable inferences” that could have been drawn seem to me would approach reasonable doubt.

Sarah West seems to be a State district judge who does not understand her role as judge or her oath of office.

Arrogance of a Progressive-Democratic Party Politician

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Congressman Adam Smith (D, WA) is the only Party politician, so far, to claim to know of and to identify illegal orders issued by President Donald Trump (R).

Yeah, I think the order to blow up those boats in the Caribbean without any, you know, actual probable cause, national security justification, or any declaration of war or armed conflict by the US Congress, I think it is illegal. That’s a legitimate opinion to hold, and it’s a legitimate opinion to express.

With that, he gives the game away.

It is a legitimate opinion to hold, and it is an opinion legitimately expressed by most American citizens. Military members must get over a much higher bar in order to express their opinions of an order’s legality with a view to disobeying it or encouraging their fellows to disobey it.

The order must be adjudicated illegal, and the military member must be prepared to suffer the consequences of disobedience or of fomenting disobedience should a court determine the order legal. On the other hand, all of us citizens, all of our politicians, can yap away at will without consequence.

Smith’s opinion that an order is illegal does not make it so. That he does not recognize that in the context of the Six’ video those politicians are potentially seeking to foment disorder explicitly in the military ranks—which would be seditious—not in the political ranks, is demonstrative of Smith’s self-important arrogance.