Category Archives: Courts

Trust

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First we have the NSA collecting personal telephone call data. Now we find out about this shadowy program, which was uncovered only because DEA had to give up its existence pursuant to a criminal case involving a man accused of planning the export of technology to Iran:

The Drug Enforcement Administration has formally acknowledged that it maintained a sweeping database of phone calls made from the United States to multiple foreign countries.

And

…the program relied on administrative subpoenas to collect records of calls….

Not even a secret, but at least Article III, judge granting (or, rarely, refusing) warrants to search. Now we have, also, the same sort of warrant issued administratively (but just as sub rosa if not outright secretly).

What other secret databases is the Federal government keeping on its employers, us citizens?

These two programs, shrouded as they’ve been, are illustrations of why government cannot be trusted with such collections absent open, publicly sought and issued or refused 4th Amendment warrants. These two programs demonstrate instead that, without such public requests and issuances/denials, the Constitution will be ignored at convenience.

An aside: DoJ says this DEA collection program has been discontinued. There’s no evidence, though, that the database has been destroyed. DoJ is only willing to claim that the contents have been deleted. We know, of course, from IRS deletions that deleting doesn’t necessarily mean deletion.

Punishment of Terrorists

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There is a strong view that terrorists should be executed for their acts. In the main, I don’t disagree. Capital crimes desperately want capital punishment: prompt execution.

However.

Many of these terrorists are doing their deeds in order to become martyrs and to live in Allah’s heaven. For these, execution is a reward, not a punishment; for such as these, execution is a goal devoutly to be wished, not a deterrent.

Instead, I suggest, expensive as it would be, that wherever possible, those terrorists who are acting for martyrdom should be taken alive and allowed to die of old age in a prison cell. Here is punishment for the terrorist, and here is the possibility of deterrence: the price of failure being to live a long life in a cage, to be denied death except through the senility of old age.

Illinois and Money

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The government of Illinois—a Democratic Party-controlled government at the time—reduced the cost of its public pension programs by passing a law reducing future cost growth, specifically, by reducing the size of future increases in pension payouts, without eliminating those increases.

Illinois’ Constitution has this to say on the matter of public pensions:

Membership in any pension or retirement system of the State, any unit of local government or school district, or any agency or instrumentality thereof, shall be an enforceable contractual relationship, the benefits of which shall not be diminished or impaired.

Illinois State Judge John Belz decided that the enacted law was a violation of Illinois’ constitution and struck the law.

The state of Illinois made a constitutionally protected promise to its employees concerning their pension benefits[.]

And

[I]t is clear that if something qualifies as a benefit of the enforceable contractual relationship resulting from membership in one of the State’s pension or retirement systems, it cannot be diminished or impaired.

Yet what “qualifies as a benefit” is a matter of statutory definition, a matter set by the Illinois’ legislature. Belz’ ruling indicates that these legislative definitions are, in fact, amendments to Illinois’ constitution—else those definitions must be changeable at legislative initiative, as the law Belz has struck did.

Among his objections is this:

The Act adds new language to the Pension Code….

Now the whole Pension Code, enacted by the legislature and not by constitutional convention, is suddenly a part of the State’s constitution.

Belz’ ruling goes on in that vein.

Belz also seems to have misunderstood what the legislature has done in concrete terms. As he clearly understands, the legislature acted to reduce the size of future pension payouts, changing, for instance, the way a (future) pensioner’s 3% annual increase in pension payment is calculated. The pensioner still gets an increase, though. A smaller increase, as any third grade pupil in arithmetic easily understands, still is an increase. A pensioner’s pension in no way is diminished or impaired, by the definition of increase.

Finally, a practical question: a State’s police powers are an assertion that the State can use its governance offices to act to protect public safety and welfare—to prevent a State from being unable to honor its financial commitments and defaulting altogether, for instance. Thus, if Illinois’ government is unable to act to pay its pension obligations, how does Belz propose those obligations be met?

The judge screwed up, and the State is appealing.

 

Belz’ summary judgment order can be read here.

Another Federal Judge Gets It Right

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Disparate theory is the idea that racial discrimination occurs, even when there is no intent to discriminate. This “theory” eliminates the “discrimination” part of the behavior actually prohibited by the Fair Housing Act of 1968, and it is the justification for a HUD rule written to allow a legal finding of discrimination if there is merely a statistical showing of disparity. This “theory” also disregards the fact that there are many factors in play with such disparity besides actual discrimination, things like financial qualifications, criminal history, and so on.

US District Judge Richard Leon has thrown the BS Flag on the concept in American Insurance Assoc v HUD. He also castigated the government for attempting to apply such a standard, and he decried Labor Secretary Tom Perez’ behavior related to the case. AIA is a case in which the insurer sued the government over that HUD rule, arguing that it was illegal as no such authority exists in the FHA to permit it.

A major part of Leon’s ruling centered on the distinction between “disparate treatment” and “disparate impact.” The former represents actual discrimination—the denial of this or mandate of that based solely on the color of a man’s skin, for instance. The latter is only an outcome—the result of a broad-based and broadly applied criterion, like financial qualifications—and an absence of discriminatory intent other than, e.g., those financial qualifications.

After leading the Federal government, as defendants in AIA, through a grade school use of the dictionary in defining the words the government used in its own briefs to justify the HUD rule, Leon pointed out that, not only did the text of the FHA not say what the government claimed it said—that disparate impact, in addition to treatment, was explicitly barred by the Act—Leon pointed out that the Act contains no language barring disparate impact and further that Congress knew how to do so, and so would have done so, had that been part of the Act’s goal [citations omitted]:

Put simply, Congress knows full well how to provide for disparate-impact liability, and has made its intent to do so known in the past by including clear effects-based language when it so chooses. The fact that this type of effects-based language appears nowhere in the text of the FHA is, to say the least, an insurmountable obstacle to the defendants’ position regarding the plain meaning of the Fair Housing Act.

Leon also was unimpressed with the Federal government’s behavior in attempting to keep disparate impact questions out of the courts altogether. In a footnote in his ruling, Leon said

…both Mount Holly and Magner were settled before the Court could decide the issue. The circumstances behind the Magner settlement, however, are particularly troubling. Indeed, a Congressional Joint Staff Report found that—in negotiating a quid pro quo deal that facilitated Magner’s settlement—then-Assistant Attorney General Thomas Perez “exert[ed] arbitrary authority” to settle the case and “placed ideology over objectivity and politics over the rule of law …. Rather than allowing the Supreme Court to freely and impartially adjudicate an appeal that the Court had affirmatively chosen to hear, [Perez] openly worked to get the appeal off of the Court’s docket.”

In his concluding remarks, Leon also wrote,

This is, yet another example of an Administrative Agency trying desperately to write into law that which Congress never intended to sanction. While doing so might have been more understandable—and less troubling—prior to the Supreme Court’s decision in Smith, in its aftermath it is nothing less than an artful misinterpretation of Congress’s intent….

This is a blow for freedom and for sound business sense in making decisions.

The opinion can be seen here.

In Which the IRS Gets Away with It

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Judge Reggie Walton, of the DC District Court, dismissed all counts brought by the conservative non-profit, True the Vote, against the IRS for the IRS’ harassment of the organization when it tried to register as a 501(c)(3). The IRS had, on receiving that application

IRS was subjecting [True the Vote founder Catherine Engelbrecht] to multiple rounds of abusive inquiries, with requests to provide every Facebook and Twitter entry I’d every posted, questions about my political aspirations, and demands to know the names of every group I’d ever made presentations to, the content of what I’d said, and where I intended to speak for the coming year.

Under the law defining a c3 organization, none of this information is relevant to the IRS’ application investigation. Indeed, Walton’s ruling explicitly makes no reference to the legitimacy of Engelbrecht’s charges.

Walton dismissed the counts because the IRS—eventually, but before this lawsuit was resolved—registered True the Vote as the c3 for which it had applied.

Unless an actual, ongoing controversy exists in this case, this Court is without power to decide it….

Because

The defendants’ grant of tax-exempt status to the plaintiff, and the defendants’ suspension of the alleged IRS targeting scheme during the tax-exempt application process, including remedial steps to address the alleged conduct, coupled with the reduced “concern about the recurrence of objectionable behavior” government actors….

Never mind that this is a purely voluntary “suspension,” subject to removal at IRS whim, conservative speech remains chilled, other attacks against other conservative entities remain (think Wisconsin), and so on. The present assault has stopped, so there’s nothing for a good judge to decide.

Let me see if my understanding of this is correct. If I stop beating my wife, wholly voluntarily and on my own initiative, I’m home free? My wife has no recourse? Never mind that I’ve only voluntarily suspended the beatings, never mind that my wife remains intimidated and vulnerable, I’ve got nothing to worry about from any court?

Walton’s ruling can be seen here.