Category Archives: Courts

Specialized Judges, But for Whom Do They Work?

Posted on by
4

Joel Shapiro faced an uphill battle when he fought the Securities and Exchange Commission in an Atlanta court last year.

The investment-firm chief executive came before an SEC administrative law judge who has never fully cleared a defendant. In August, the judge found Mr Shapiro had violated securities law, showing “reckless disregard” for his duty to investors.

Shapiro’s outcome isn’t unusual. Shockingly, neither is that SEC admin judge’s record. Appeal? Don’t bet against the house [emphasis added].

The odds are once more against Mr Shapiro as he challenges this ruling. His appeal will be decided by the SEC’s five commissioners, the same body that decided the case against him should go forward in the first place.

Indeed,

The SEC won against 90% of defendants before its own judges in contested cases from October 2010 through March of this year, according to the Journal analysis. That was markedly higher than the 69% success the agency obtained against defendants in federal court over the same period, based on SEC data.

There’s nothing wrong with using judges specialized in an aspect of the law: we get faster results that more closely align with the law and with justice. That’s what bankruptcy judges do, for instance.

Specialized judges though, regardless of their specialty, need to be Article III judges—judges who are part of that third branch of our Federal government, like bankruptcy judges—not Article II judges. An Article II judge—that SEC judge, for instance—is created by the Executive Branch, and he works for the agency bringing the complaint.

No, the critical item here is the judge’s employer. With the SEC, for instance, it’s an Executive Branch judge, an SEC judge, adjudicating a case brought by a part of the Executive Branch, the SEC. That’s like the cop bringing his own judge to traffic court. Or a Federal prosecutor bringing his own judge to criminal court.

Maybe Shapiro has a case, and maybe he’s guilty as sin. It’s impossible to say in an SEC court. Can you say, “Conflict of interest,” boys and girls?

A Proper Ruling

Posted on by
Reply

And by Article III judges….

The Second Circuit appellate court has ruled in favor of individual liberty, privacy, and free speech all in one ruling.

[The Second Circuit] ruled Thursday the National Security Agency’s controversial collection of millions of Americans’ phone records isn’t authorized by the Patriot Act, as the Bush and Obama administrations have long maintained.

The Court held, in part,

…we hold that the text of [the law in question] cannot bear the weight the government asks us to assign to it, and that it does not authorize the telephone metadata program. We do so comfortably in the full understanding that if Congress chooses to authorize such a far‐reaching and unprecedented program, it has every opportunity to do so, and to do so unambiguously. Until such time as it does so, however, we decline to deviate from widely accepted interpretations of well‐established legal standards.

Indeed. The question is a political one and not a judicial one. It may be that Congress will screw this up and authorize the thing, but in that event we have recourse: we can fire the blackguards in an upcoming election and select, instead, representatives who understand our rights as free men.

The court’s ruling was based on one of the core questions regarding this law:

[T]he government takes the position that the metadata collected—a vast amount of which does not contain directly “relevant” information, as the government concedes—are nevertheless “relevant” because they may allow the NSA, at some unknown time in the future, utilizing its ability to sift through the trove of irrelevant data it has collected up to that point, to identify information that is relevant. We agree with appellants that such an expansive concept of “relevance” is unprecedented and unwarranted.

Sorry guys—no fishing expeditions, either.

The Second Circuit’s ruling can be read here.

Change We Can Hope For

Posted on by
Reply

A post-World War II-era program that forces raisin producers to give part of their annual crop to the government could soon be a relic of history.

Several Supreme Court justices expressed doubts Wednesday that federal officials can legally take raisins away from farmers without full payment even if the goal is to help boost overall market prices.

An immediately post-war New Deal law allows the Federal government to manipulate the market’s raisin supply by seizing a significant fraction of a raisin farmer’s crop and thereby prop up raisin prices—for the benefit of that farmer, you see.

Raisin farmers, over the specific period at issue (because law suits, quite properly, have to be specific in their allegations), were required to give up 47% (!) of their crop to the Feds. Marvin and Laura Horne were among the farmers so afflicted, and they demurred, refusing to give up their property, their raisins. For their effrontery, the Feds have fined them almost $700,000.

The law in question, though, is a follow-on from the Supreme Court’s earlier Wickard v Filburn case that gutted the Commerce Clause by allowing the Federal government to dictate to farmers how much wheat they could grow—and therewith to manipulate market prices. Wickard made possible all of the subsequent market interferences and farm diktats that the government has inflicted on the nation.

This case, Horne v Department of Agriculture, is an opportunity for the Supremes to begin correcting that original mistake.

A Stay on Illegal Immigration

Posted on by
Reply

Federal Judge Andrew Hanen has refused to stay his temporary injunction blocking President Barack Obama’s refusal to deport some 4 million illegal immigrants in Federal custody or whose whereabouts otherwise is known to the Feds. Hanen’s injunction will remain in force while Obama’s men appeal the stay to the 5th Circuit.

Refusing to stay his injunction has the effect, among others, of blocking Obama from pursuing (pending that appeal’s outcome) his Deferred Action for Parents of Americans and Lawful Permanent Residents program and his planned expansion of the 2012 program called Deferred Action for Childhood Arrivals.

OF course, enforcing that block is problematic. Aside from the obvious reasons for suspicion, there’s this about that 2012 program from Hanen’s order and ruling:

The Court finds that the Government’s multiple statements on this subject were indeed misleading, as detailed in the Order filed simultaneously with this Order. It also finds that the remedial measure taken by counsel for the Government through the filing of an “advisory” on March 3, 2015, was neither prompt nor fully candid.

Since this administration, once again, has shown it cannot be trusted, there’s no reason to suppose Obama won’t move ahead apace with both programs.

Hanen wasn’t done, though. In a separate order, on the matter of that 2012 program and the President’s men lying about it, Hanen

also issued a separate ruling Tuesday night allowing the states to conduct discovery into their separate claim that the administration, beginning late last year, improperly implemented part of its immigration program, even though it had allegedly represented to Judge Hanen that it wouldn’t do so until February.

Justice Kennedy Testified

Posted on by
Reply

Justice Anthony Kennedy testified a little bit ago before the House Appropriations Subcommittee on Financial Services and General Government regarding the Supreme Court’s budget request. In the course of that, Congressman Ander Crenshaw (R, FL), the subcommittee’s chairman, asked Kennedy about Congressional gridlock. Kennedy answered,

And we think an efficient, responsive legislation and executive branch in the political system will alleviate some of that pressure. We routinely decide cases involving federal statutes and we say, well, if this is wrong the Congress will fix it.

But then we hear that Congress can’t pass a bill one way or the other. That there is gridlock.

Some people say that should affect the way we interpret the statutes. That seems to me a wrong proposition. We have to assume that we have three fully functioning branches of the government, government that are committed to proceed in good faith and with good will toward one another to resolve the problems of this republic.

I think, though, that Kennedy is missing part of the point (keeping in mind that the C-SPAN clip is an excerpt, but this particular answer is presented in its entirety). Federal statutes, under our Constitution, are political matters to be determined solely by We the People through our elected representatives in the Congress (with veto or signing input from our elected President). The Judiciary, that third fully functioning branch of the government under our Constitution, can only decide the legitimacy—the Constitutionality—of a Federal statute and, on finding it legitimate, can only apply that statute as it is written.

There is nothing in our Constitution that authorizes the Judiciary to do any part of law making in the event of gridlock. Gridlock is a political matter, not a judicial one, it’s an occasional outcome of the checks and balances built into our government by our Constitution, and it’s there on purpose: that would be the “check” part. The courts are in no way authorized to fill that void with their own view of what the law (or a law) ought to be. There is, in fact, no void to be filled.

It would have been good had Kennedy given a more complete answer.