Tag Archives: courts

Another Victory over Big Government

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Here’s the long and the short of it, as summarized in The Wall Street Journal:

A federal judge this week struck down a controversial set of laws allowing the Federal Bureau of Investigation to seek people’s records without a court’s approval, saying the strict secrecy orders demanded by the laws are not constitutional.

US District Judge Susan Illston (Northern District of California) ordered the government to stop sending national security letters or to stop trying to enforce gag orders related to them, but she stayed her order pending the government’s appeal.

Of course, it’ll go to the 9th Circuit, which means it will go on to the Supreme Court, so the fight isn’t over.  But this is an excellent start.

Illston’s opinion decried these violations of Americans’ individual freedom:

[The] pervasive use of nondisclosure orders…creates too large a danger that speech is being unnecessarily restricted.

She added [emphasis added]:

[T]he statute impermissibly attempts to circumscribe a court’s ability to review the necessity of nondisclosure orders.  …the NSL nondisclosure provisions significantly infringe on speech regarding controversial government powers.  …  As written, the statute expressly limits a court’s powers to modify or set aside a nondisclosure order to [certain] situations….  The statute’s intent…is incompatible with the court’s duty to searchingly test restrictions on speech.

There are two problems with these letters.  One is that they allow searches without a court’s warrant.  The FBI can use them to search for phone data and for financial and electronic records, and all the FBI agent needs is his Field Office Special Agent in Charge to say it’s all jake.  This is a clear violation of our 4th Amendment.

The other problem worsens this exponentially: the FBI can require (or could before Illston’s ruling) the recipient of the letter to keep quiet about his receipt—denying the owner of the records any opportunity to respond to the search before it happens.  This also denies two critical aspects of the 1st Amendment: that right to speak of receipt and the duty of a court to adjudicate any allegation of a 1st Amendment violation.

Illston’s ruling can be read here.

Another Victory for the 1st Amendment

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AP is reporting it.

US District Judge Lawrence Zatkoff granted a preliminary injunction against enforcement of the contraception provision of the law against Tom Monaghan and Domino’s Farms Corp, a management company located near Ann Arbor, MI.

HHS had argued from the outset that its contraceptive rule was not an infringement on Monaghan’s religious freedom.  HHS continued, additionally, to elide the other religious freedom clause in the 1st Amendment—that minor bit about government not being able to interfere with the free exercise of religion.  Zatkoff waved the BS flag at all of that.

Plaintiffs’ constitutional right to freely exercise religion is at issue in this case. It is in the best interest of the public that Monaghan not be compelled to act in conflict with his religious beliefs.

And

Finally, the Court must balance the harm to Plaintiffs if the injunction is denied with the harm to the Government if the injunction is granted.
…
As discussed above, denying Plaintiffs’ motion will result in a substantial burden on Monaghan’s

right to free exercise of religion, since the mandate requires him to choose whether to comply and violate his beliefs, or accept the financial consequences of not doing so.  And, as noted, such an infringement upon Plaintiffs’ First Amendment rights—even if for a short time—constitutes irreparable injury.
…
The Government will suffer some, but comparatively minimal harm if the injunction is granted.

It really is that simple.

Nevertheless, the government made its argument.  The health care law and HHS’ rule, they insisted,

are narrowly tailored to serve two compelling government interests: improving the health of women and children, and equalizing the provision of preventive care for women and men so that women who choose to can be a part of the workforce on an equal playing field with men.

The fact is, though, this cynical argument doesn’t hold water.  In the first place, contraceptives are not health care, except to the extent that some religious groups argue that contraceptives run counter to children’s health by preventing their existence in the first place.

Additionally, the availability of contraceptives at others’ expense has nothing to do with “equal playing fields.”  Further, non-market oriented coverage, barring risk-based premiums, or violating religious freedom have nothing to do with “equal playing fields” from individual Americans’ perspective.

However, any government intrusion into the religious freedoms of individual Americans has everything to do with “equal playing fields” by tilting those fields toward government-favored groups.  Any government intrusion into a free market—including into the insurance (risk transfer for a fee) industry—has everything to do with “equal playing fields” by tilting the fields toward government-favored groups.

Zatkoff’s ruling can be read here.  Easter came early last week.

A Cascade

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…that needs to be encouraged.

Since the DC Circuit’s ruling that the Obama “recess” appointments to the NLRB were unconstitutional—the Senate actually being in session at the time—some 87 enterprises, including a few unions, are citing the ruling in their lawsuits to overturn a variety of the NLRB’s actions.  After all, with the board lacking a quorum, it was legally powerless to do anything at all.

The actions these enterprises are seeking include overturning/blocking union elections, undoing penalty payments to fired workers, halting subpoenas, and so on.

Here’s the cascade: 10 or more NLRB regional directors are argued also to be illegally appointed since they were seated by Obama’s unconstitutionally manned NLRB.  Extending from this, those regional boards’ decisions also must be voided, since those rulings were issued by illegally constituted regional boards.

Lafe Solomon, NLRB acting General Counsel, objects.

It’s already having a huge impact.  At every stage…we’re seeing attacks….

Indeed, as the WSJ reports,

The surge of challenges tied to the court ruling is overwhelming the NLRB, a federal agency that referees disputes between companies and employees.  Working through them is delaying resolution of cases alleging unfair labor practices, including whether workers can fairly hold union elections[.]

There’s no doubt the new workload is inconvenient to the Federal government.  That’s just too bad.  The inconvenience of our employee, the government, can never be an excuse for its behaving illegally.  Our employee, through the NLRB, brought the present inconvenience on itself through its patently illegal behavior.

The NLRB—Solomon—is merely blaming the employer for the employee’s own inconvenience.

You Dumb ….

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That’s what New York State Supreme Court Judge Milton Tilling said to New York City’s lame duck mayor, Michael Bloomberg, on the latter’s…ill-advised…”sugary drink” ban.

Tilling opened his opinion by noting, correctly, the irrelevance of Bloomberg’s “obesity epidemic” motive for the ban—the question before him was simply the legitimacy, the legality, of the ban itself.  Motives, say I in expansion of Tilling’s point, are appropriate considerations only in determining sanctions, given a finding of illegality; they never can be justification for the illegality.

[The city does not have authority to] limit or ban a legal item under the guise of ‘controlling chronic disease,’ as the [city’s health department] attempts to do.  One of the fundamental tenets of democratic governance here in New York, as well as throughout the nation, is the separation of powers.  No one person, agency, department or branch is above or beyond this.

[The City Charter does not grant the health department] sweeping and unbridled authority to define, create, authorize, mandate and enforce [health codes governing food establishments and food preparation.  The soda ban] would not only violate the separation of powers doctrine, it would eviscerate it.

The judge’s beef here is that the health department just up and did the ban.  The ban was never approved by the city council.  The city’s elected representatives are the only ones who can create city law.  In fact these representatives had already explicitly rejected similar ban efforts.

Further, the Bloomberg Ban was unconstitutionally vague, capricious, and stupid.  (OK, I added that last part.  There is no Felony Stupid bar in New York’s or our Federal Constitution.)

The plaintiffs in this case pointed out that

…the Rule exempts soy based milk substitutes, but other milk substitutes such as almond, hemp and rice milk are not exempt.  The Rule also does not preclude unlimited free refills or multiple purchases of 16-oz. beverages or providing unlimited sugars after purchase at the regulated businesses….

And so on.  Tilling agreed.

The court finds that the regulation herein is laden with exceptions based on economic and political concerns. … The statement of financial costs related to the chronic epidemic [by the defendants] further evidences a balancing being struck between safeguarding the public’s health and economic considerations.  This is impermissible….

Further (the motive rejection above notwithstanding),

…the stated premise of…the Rule is to address the rising obesity rate in New York City. … The Rule is nevertheless fraught with arbitrary and capricious consequences.  The simple reading of the Rule leads to…uneven enforcement even within a particular City block, much less the City as a whole.  Furthermore…the loopholes in this Rule effectively defeat the stated purpose of the Rule.  It is arbitrary and capricious because it applies to some but not all food establishments in the City, it excludes other beverages that have significantly higher concentrations of sugar sweeteners and/or calories on suspect grounds, and the loopholes inherent in the Rule, including but not limited to no limitations on re-fills, defeat and/or serve to gut the purpose of the Rule.

 

Tilling’s ruling can be read here or here.

Good Idea, Bad Law

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It’s useful for a jurisdiction to control property use through zoning laws—whether to keep unsavory but legal businesses away from children, to preserve an historical building/neighborhood, and so on—provided those restrictions don’t get too onerous or too intrusive on the property rights of the owner(s).

Sometimes, though, a well-intended law has unintended consequences.

In a precedential decision, Motley v. Borough of Seaside Park, No. A-3214-11, the Appellate Division [of New Jersey] found a house that had been gutted to a shell to accomplish repairs was totally destroyed and so lost its status as a grandfathered nonconforming use under local zoning laws.  The panel strictly construed a statute that says a nonconforming use or structure may be restored or repaired if partially destroyed but total destruction terminates it.

Contaminating this seeming miscarriage of justice, though [emphasis added],

In August 2009, [property owner Daniel] Motley requested and obtained a permit to repair and renovate the house and replace the air-conditioning unit.  The permit carried a notation that siding, shingles and windows could be added, but no bumpouts were allowed and the structure could not be expanded.

Once work began, however, the building, not lived in for some time, was found to be in worse shape than expected and uninhabitable.  Among other problems, the roof and water system leaked, part of the first floor ceiling had collapsed, floor beams were rotted and the main center beam was sagging.

This has implications for homeowners attempting to repair/rebuild their homes and businesses in the aftermath of Hurricane Sandy: the storm’s destruction of buildings will cancel any variances granted, even though these buildings will have been continuously occupied and the spirit of the variances honored throughout.

New Jersey’s Appellate Division ruling on essentially destroyed property thus seems counterproductive; however, the court made the correct ruling: being unable to strike the law as unconstitutional, it applied the law as written.  The failure is in the law itself, not in the ruling.

Now it’s on the New Jersey legislature to correct this evident injustice.