Category Archives: Courts

The Supreme Court and Utilities

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The Supreme Court on Monday upheld the federal government’s ability to spur incentives for industrial businesses, schools and other large energy consumers to reduce power usage at times of peak demand.

The court, in a 6-2 ruling by Justice Elena Kagan, said the Federal Energy Regulatory Commission acted within its powers when it issued an order in 2011 requiring higher levels of compensation for some power customers that agreed to reduce their electricity use.

The Court likely is right on this, in that FERC’s rule is within the confines of the underlying law. However, this still is the government picking winners and losers, and this still is the government dictating to private enterprise what it must do.

The corrective answers that are required, then, are two: one is to withdraw FERC’s authority to issue such rules, to rescind Congress’ delegation of such rule-making to FERC (such a rescission is required across the board, but that’s for another writing).

The other required answer is to alter the underlying law that the FERC rule was…fleshing out. It’s a law that is no longer necessary and that, as the FERC rule demonstrates, has become vulnerable to Executive Branch abuse.

That law is Section 201 of the Federal Power Act, which

empowers FERC to regulate “the sale of electric energy at wholesale in interstate commerce.”

Congress’ authority (not an Executive Branch agency’s) to regulate interstate commerce is constitutionally limited to regularizing commerce among the States, not to dictate the terms of that commerce. Of course, for Congress to recover this authority and its limits, a third required answer consists of correcting a number of Supreme Court mistakes regarding how far Big Government may reach inside any State to regulate commerce there.

Delays, Delays

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Stalls, stalls. That’s what State is doing over the Clinton email national security disaster with its latest request to be “late” delivering the court-ordered documents.

“The Clinton email team must perform its work on site. … This storm will disrupt the Clinton email team’s current plans to work a significant number of hours throughout the upcoming weekend and could affect the number of documents that can be produced on January 29, 2016,” agency lawyers wrote in their request.

No. State has been stalling and outright obstructing this release for years—that’s why the matter is before a Federal court and under that court’s order and nominal supervision to deliver on a set schedule in the first place. All through that ordered schedule, too, State has continued to delay, stall, obstruct, release at less than the court-ordered rate. The latest such stall was when State whined that the Christmas holiday schedule for their precious email sorters was more important than complying with the Court’s order and the people’s right to know what Democratic Party Presidential candidate was doing with her private, unprotected email server while she was Secretary of State. This storm would be irrelevant if State had complied with the original requests in the first place, or had complied with the court’s order in the second place.

No. State plainly is now in contempt of court. The Federal judge needs to hold, promptly, a hearing wherein State supervisory personnel should show cause why they shouldn’t be jailed for their contempt until the emails have been delivered and the contempt condition resolved.

A State Appellate Court Error

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The Maryland Court of Special Appeals has postponed the trial of a police officer charged with second-degree murder in the death of Freddie Gray last April.

That officer was Caesar Goodson, the second officer to go on trial. The putative reason for the delay is the hung jury on the first trial, of William Porter. The Baltimore prosecutor has said that Porter’s testimony at Goodson’s trial (and at the trials of a number of the other officers charged in Freddie Gray’s death) is central to their case. With Porter still under trial, and with a Federal case against Porter still possible, his testimony could be incriminating, and the appellate court wants to fully adjudicate the legitimacy of the prosecution’s forcing Porter to testify.

So, for the sake of government convenience, another defendant’s trial is delayed, that defendant’s 6th Amendment right to a “speedy…trial” is annulled.

Of course, the prosecutor is prepared to proceed with the trial, pretty much by definition, else she would not have charged the defendant. That she finds it difficult to proceed without Porter is irrelevant. There’s nothing in that 6th Amendment that says “speedy…trial, except when the government demurs.”

This delay is wrong.

Unions and Non-Member “Fees”

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This session, the Supreme Court will hear, among other cases, Friedrichs v California Teachers Association.

On Jan 11 the court will hear arguments on whether public employees can be required to join a union or pay it a fee for collective-bargaining services.

The lawsuit contends such agreements violate First Amendment protections.

The argument is that, with public service unions, such fees also are political speech, since the unions also push for this or that domestic policy with their bargaining counterpart, the government, and there’s no way to separate out the union monies spent for bargaining outcome from those spent for political lobbying.

Such “agreements” (because paying the “fees” isn’t at all a voluntarily entered into arrangement, but a condition of having the job at all) go beyond that, though. They’re also a taking under principle of the 5th Amendment. Even though that Amendment binds the government and not private entities regarding takings, it’s not too far a stretch to apply it to the quasi-government entities of public service unions. Withal, the principle is valid, even if the Amendment itself is not strictly applicable.

Arguments in favor of the “fee” proceed from a false premise, too. “Fee” proponents argue that the payments are fair compensation for the union’s work in achieving an agreement for the nonmembers as well as the members. Of course, this is false on its face. The nonmembers are not represented by the union—that’s pretty obvious. As such, then, any arrangements between nonmembers and employers are strictly that: between the employer and the nonmember. If those arrangements look like what the union bargained for its members, oh well. They’re not required to be, and sometimes they are not.

Unions in Friedrichs also make the following argument:

If the suit prevails, public-employee unions say they could be crippled in about half the states that allow such agency shop clauses.

Couple things about that argument. One is that it may well be inconvenient to the unions (even extremely so), but that isn’t relevant. Either the “fees” are owed for the claimed services rendered, or they are not. The case should be decided on its merits, not on the basis of any supposed knock-on effects.

The other thing is this: so what?

Another Foolish Argument

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Nebraska and Oklahoma have asked the Supreme Court to strike Colorado’s 2012 marijuana initiative on the grounds that the Colorado constitutional amendment has sparked crime increases in their own states. To the extent that can be shown, it’s an argument worth having.

Enter President Barack Obama through his Solicitor General, Donald Verrilli, in Verrilli’s brief to the Supreme Court, in which Obama urged the Court to reject the case:

Entertaining the type of dispute at issue here—essentially that one State’s laws make it more likely that third parties will violate federal and state law in another State—would represent a substantial and unwarranted expansion of this Court’s original jurisdiction.

Here’s what our Constitution says about the Supreme Court’s role in disputes between States, which Verilli’s brief also cites:

In all Cases…in which a State shall be Party, the supreme Court shall have original Jurisdiction.

Verrilli’s brief also cited the First Judiciary Act, a hoary old law passed by the First Congress’ first session in 1789 averring, among other things, that the Supreme Court in particular has

original and exclusive jurisdiction of all controversies between two or more States.

Notice those two cites: there is nowhere contained within either any caveat or limit. There is nothing that says, “Except when it’s inconvenient to Government,” or “Except when there’s something else,” or….

Despite that, the Solicitor General, in his brief (undoubtedly written for him by that better lawyer than his lawyers—it certainly contains Obama’s depth and style of legal thinking [/snark]), made the claim that taking the case would represent a substantial and unwarranted expansion of the Court’s role in settling a dispute between States.

Nonsense. This is a textbook example of a dispute between States, and it’s directly within the Court’s constitutionally mandated function, especially as fleshed out by Congress and a President who signed the fleshing-out into law. The Court may decide it’s a bogus beef, and that would be a useful precedent to set.

But it’s entirely a Supreme Court decision. Verrilli and his boss know this full well.