Tag Archives: courts

Another Reason to Rescind Chevron Defense

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As The Wall Street Journal‘s editors put it in their editorial last Tuesday, nothing is stopping the

Securities and Exchange Commission and prosecutors from finding [regulatory] meaning in statutory penumbras.

Now the SEC is manufacturing a rule based on nothing but the æther in SEC Chairman Gary Gensler’s mind. Gensler has hailed into court a pharmaceutical company employee for the “insider trading” crime of trading in options on the stock shares of another pharmaceutical company, a company about which the man had no insider information at all. Not a whit.

Gensler, however, in plumbing the depths of his shadowy æther, has claimed to have found something in a penumbra of Federal law and Court decisions regarding insider trading. The man he’s charging knew from an employee-broadcast email from his company’s CEO that his company might be about to be acquired by another company—not the company in which our man did his trading.

Poof—Gensler has waved his hands and conjured an insider trading beef centered on no insider trading information at all. As the WSJ noted,

Federal law doesn’t explicitly ban trading on confidential information. But courts have said that insiders defraud companies by “misappropriating” private information for personal gain.

It’s in the phantasmal penumbra of “private information” that Gensler has conjured his offense: private information in one company (not even that private, it was a company-wide email that revealed the potential for an acquisition of the employee’s company) casts a shadow over other, Gensler-unspecified, companies, and so brings those other companies into the reach of one company’s allegedly private information.

And this, regarding those chimeric penumbras[1] of which too many of our courts still claim to see:

If something is in a penumbral region, it is not in the text.  If it is not in the text, it does not exist ….  If it does not exist, a judge cannot rule on it.  If in the end, all a judge can do after carefully reading the text is go more than a toe’s dip into its shadows for meaning, then he must not go in: he must rule a lack of governing statute or strike the statute for vagueness, and in either event return the matter to the political branches.

And this, from Justices Antonin Scalia and Clarence Thomas, in denying a 2014 cert petition in Whitman v US [emphasis in the original]:

Only the legislature may define crimes and fix punishments. Congress cannot, through ambiguity, effectively leave that function to the courts—much less to the administrative bureaucracy[.]

Now the Supreme Court must overrule the SEC outright, which would be much easier to do were it to also—or already have by the time this case reaches it—rescinded the Chevron Defense foolishness which subordinates, by Constitutional design, the coequal Judiciary not just to the Executive, but to Executive subordinate branches led by political appointees and peopled by unknown and faceless bureaucrats.

[1] Hines, Eric, A Conservative’s View of the American Concept of Law

What Damages?

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Stipulate, arguendo, that Republican Primary Presidential candidate Donald Trump was, indeed, guilty of civil fraud as New York judge Arthur Engoron ruled regarding the way Trump valued his properties in order to obtain loans. As a result of that civil conviction, Engoron has ordered, among other things, that Trump must pay more than $350 million in “ill-gotten profits” which are some sort of “damages.”

I have to ask: what damage? What ill-gotten profit? All the bank loans were repaid in full along with all of the associated interest accumulated over the lives of the loans. Think about that for a moment. The question of damage goes, or should go, far beyond the proximate question of whether the banks got all that was due them under the terms of those loans.

Had Trump valued his properties in line with Engoron’s claims—Mara Lago, for instance was worth only $18 million in Engoron’s judicial (not financial) estimation rather than the $420 million (at least) at which Trump valued it—the associated loans would have been far smaller, and the banks would have made far less money. What damage, indeed?

And those “ill-gotten profits” that Trump made with those loans? Those loans and associated profits allowed some of his businesses to survive and those employees to continue to have good jobs, and those loans and associated profits allowed other of his businesses to grow and those businesses to hire more employees into growth-created good jobs.

Valid Arguments

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Several States’ Attorneys General have filed an amicus brief in a Supreme Court case centered on whether Texas and Florida statutes that limit Big Tech’s ability to censor speech done on their platforms are legitimate. The analogy they draw is one valid argument.

[Summarized by Fox News]: [G]iving Big Tech the ability to moderate or censor users’ content would be like giving cable or telephone companies permission to cut phone lines on speech at their discretion. The AGs note that under federal “must-carry requirements,” those companies are banned from subjugating any speech on their lines.

And:

The Eleventh Circuit concluded social media companies could censor content because they have “historically exercised” power to refuse transmission of disfavored ideas.
But telegraph companies have a much longer history of censorship. Social media is less than two decades old. Congress did not impose must-carry requirements on telegraphs until 1888, 50 years after their invention[.]
Yet it is well recognized today that those must-carry regulations were constitutional—even though this Court declared that telegraph companies are “not common carriers.” History thus provides no basis for dismissing the striking similarities between social media companies and telegraph and telephones by dubbing social-media censorship “editorial judgment[.]”
While the earlier laws applied to telegraphs and telephones, it is no different when the companies carrying other people’s speech are digital rather than analog[.]
The States thus have a paramount interest in urging this Court to affirm that longstanding, historic authority of States to protect freedom of speech and enable representative government by prohibiting dominant communication networks from censoring[.]

There is one more argument that is, IMNSHO opinion, dispositively on point. This is the status of those Big Tech platforms—X (nee Twitter), Meta’s Facebook, and Alphabet’s YouTube, for instance—as public forums. Indeed, some of these platforms have explicitly stated that they intend to be public squares for public discourse, even as they also provide mechanisms for exchanging private correspondence.

The public square is precisely where speech may not be censored except within a very few very narrowly defined boundaries—incitement to riot, explicit threats of violence against particular persons. Whether any Big Tech platform has explicitly styled itself a public square, each of these platforms have grown so large—become so dominant—that each one of them is, de facto, a public square. Their censorship practices must be barred.

Racism, Arrogance Against Election Integrity

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In the aftermath of the 2020 election confusions in Georgia (both general and runoff), that State passed its Election Integrity Act that, among other things, shortened Georgia’s early voting period from nine weeks to four, reduced the window for mail-in ballots, and moved the deadline for registering to vote to 29 days before an election.

The Sixth Dist. of the Afr. Methodist Episcopal Church, the Ga. State Conf. of the NAACP, and The Concerned Black Clergy of Metro. Atlanta Inc., joined by the Federal government’s DoJ, sued to strike the law as voter suppressing—the stricter voting period unfairly discriminates against Black voters, among other complaints.

This was a nakedly racist suit that used a manufactured racism beef as the core of their argument. Federal District Judge JP Boulee issued a preliminary injunction upholding the law. With particular reference to the Act’s runoff requirements, he wrote,

Plaintiffs presented evidence that Black voters are more likely to vote early. Plaintiffs did not present any evidence, however, which would show why Black voters would disproportionately struggle to vote during the new early voting period

And [emphasis added]

In short…the Court is not persuaded that evidence showing that black voters use early voting more often is sufficient to show that the Runoff Provisions, which shorten the early voting period, will have a disparate impact on black voters. In other words, without more, generalized evidence related to the use of early voting is not sufficient to automatically show that this particular provision, which pertains to one aspect of runoff elections, is discriminatory.

And

Plaintiffs have failed to meet their burden to show that the Runoff Provisions have a disparate impact on black voters. Indeed, Plaintiffs failed to show that eliminating the registration period before a runoff election disproportionately impacts black people. Plaintiffs also failed to show that reducing the early voting period and not mandating weekend voting has a disparate impact. The Court thus weighs this factor in favor of Defendants and against a discriminatory purpose finding.

“Plaintiffs” just expected their unsubstantiated claim to be taken as dispositive fact. Their arrogance runs as deep as their racism.

Regarding the specific question of Plaintiffs not getting their preferred way, Boulee noted the 11th Circuit’s precedent, binding on his court (the 11th Circuit includes Georgia):

The Court acknowledges that the Legislature did not include the alternative option that Plaintiffs would have preferred [a one- or two-week longer voter registration period]. Importantly, the Eleventh Circuit has held that the failure to “‘include the alternative option[s] that Plaintiffs would have preferred’ is not evidence of discriminatory intent.”

That’s the arrogance of Plaintiffs being handled.

The dishonest nature of the plaintiff’s beef is illustrated in Footnote 6 of the Boulee’s ruling [emphasis added, cites omitted]:

6 As to the other named organizations, the Court is not convinced that Plaintiffs established an injury based on a diversion of resources. By way of example, Plaintiffs argued that “[i]t is false that Common Cause ‘says nothing about runoffs,’ . . . Common Cause testified about its voter participation efforts in both the ‘2020 Primary and Runoff election cycles.'” A close look at Plaintiffs’ evidence, however, does not show that Common Cause diverted its resources to counteract the Runoff Provisions. Instead, Common Cause’s representative stated that “[a]s part of the organization’s voter participation efforts, Common Cause GA provided free personal protective equipment (PPE), food, and water to persons, including voters, at or around polling sites, in Fulton County during the 2020 Primary and Runoff election cycles.” Simply put, the fact that Common Cause elected to give out water and other gifts during a runoff election does not show that it diverted resources away from its ordinary activities to counteract the Runoff Provisions.

These plaintiffs, their judgments clouded by their racism and arrogance, are just making things up and claiming them to be true without even a pretense of substantiation.

The judge’s ruling can be read here.

Maybe the Judge Isn’t Entirely Correct

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A Florida man was charged by the Feds for possessing a firearm in a US Post Office facility. A Federal district judge ruled the law governing his arrest to be unconstitutional.

US District Judge Kathryn Kimball Mizelle, an appointee of former President Trump, cited a 2022 landmark US Supreme Court decision that expanded gun rights when she handed down her ruling Friday that dismissed part of an indictment charging a postal worker with illegally possessing a gun in a federal facility.

So far, so good. But:

[T]he judge declined to dismiss a separate charge for forcibly resisting arrest.

The “forcible resistance” consisted of the man running when Federal agents tried to “detain” him. This is where I have a problem. I don’t see anything wrong with resisting arrest when the arrest is pursuant to a non-law, a law that is unconstitutional. The charge itself was legitimate, since the agents, in good faith, were trying to arrest him, and he ran (notice that: he ran, he did not fight); however, once the underlying law was ruled unconstitutional, the arrest pursuant to it became illegitimate, and the charge of resisting that arrest should have been dismissed.